BUFFALO, N.Y. — On Monday February 12 the federal court trial of former DEA agent Joseph Bongiovanni is finally set to get underway, more than four years after his arrest.
He is charged with conspiracy to defraud the U.S. government by allegedly accepting bribes from drug dealers and others in exchange for tipping them off to investigations.
Bongiovanni was indicted along with Pharaoh’s Gentlemen’s Club owner Peter Gerace Jr., who will be tried separately and who faces additional charges including sex trafficking.
A pre-trial hearing for Bongiovanni was held on Thursday to seal up several matters prior to the start of the trial.
"We have a lot to get to," remarked U.S. District Judge Lawrence Vilardo, who will preside over the case.
A pool of 200 Western New Yorkers has been summoned to serve as potential jurors for the trial that is expected to last anywhere from six to eight weeks and stretch past the Easter holiday.
Prosecutors and defense attorneys spent most of the day in court wrangling over a number issues, primarily regarding why types of evidence will be let in, who can testify, and to what extent.
Bongiovanni and his defense team still won't find out until Monday, Feb. 5 — one week before the trial is set to begin, the full identities of close to a dozen "protected" witnesses who were referred to in court on Thursday only by initials.
However, information disclosed in open court on Thursday makes it apparent that they could include strippers, bikers, drug dealers, cops, and even Bongiovanni's ex-wife.
Lawyers for Bongiovanni were successful in several instances in convincing the judge to quash certain types of evidence because it was either speculative, prejudicial, or didn't have anything to do with the heart of the case at hand.
It also appears that some of the evidence the government seeks to introduce, while perhaps not direct evidence of Bongiovanni taking bribes, would be used to establish reasons as to why they believe he did and to convince jurors of this guilt.
Feds claim "financial strain" turned Bongiovanni dirty
Among other things prosecutors seek to bring evidence to demonstrate Bongiovanni was under financial strain from a divorce and the payment of child support at the time when he is alleged to have started taking bribes, and sought to introduce communications between Bongiovanni and his ex-wife to establish that. His defense countered the communications demonstrated nothing more than the usual disagreements over money that separating couples find themselves in.
The judge, questioning the relevance of the communications to the case, and if they demonstrated that Bongiovanni was actually "in need" of money, said he would not permit them as evidence. He did rule, however, that prosecutors will be able to enter into evidence Bongiovanni's tax returns and banking records.
According to the government, the tax returns, and the testimony of an FBI agent that there were unexplained cash deposits in Bongiovanni's accounts, will demonstrate that without those deposits he would "be in the red." Defense lawyers objected on the grounds that there was no allegation of tax fraud at hand and that permitting his tax returns to be admitted would just "open up a can of worms."
You want the high school yearbook?
The government had moved to enter Bongiovanni's high school yearbook into evidence because there was a passage where he indicated that he "wanted to be a billionaire", which prosecutors contended established his "desire for money." The yearbook, prosecutors said, would also establish that two of the principles Bongiovanni allegedly conspired with all went to high school together, and thus establish the long-lasting relationship between them. They referred to it as "photographic evidence of an association."
"The yearbook is not coming in," said Justice Villardo, unless none of the persons who may testify says the subjects all knew each other
"Client conspiracy"
The government alleges Bongiovanni is guilty of fraud through "theft of honest services" by taking bribes.
However, the defense expressed concern that the government was also trying to convict their client under an unindicted theory of "client" conspiracy, which would basically involve Bongiovanni being aware of illegal activity and looking the other way, even if no money was exchanged. Bringing such a theory before jurors who will decide Bongiovanni's guilt or innocence would taint them, according to the defense.
Prosecutors insisted that even as a client conspiracist Bongiovanni would still be guilty, because the would be involved in an effort to "interfere or obstruct, through deceit, craft, or trickery" a lawful government function.
The issue will be ruled upon during the course of trial testimony and jury instruction.
"IOC" references
In court, the word mafia was avoided by all sides who used instead the phrase "IOC" to refer to Italian Organized Crime.
The prosecution has tried to portray Bongiovanni as an Italian organized crime sympathizer who sought to shield those whom he thought were mob associates from arrest. The government indicated it seeks to demonstrate that Bongiovanni interjected himself into a prior unrelated charge against his co-defendant Gerace in particular, because it had been widely reputed that Gerace's grandfather was the boss of the Buffalo mafia.
The judge indicated references to Italian organized crime will be limited in the trial.
"This is not going to become a trial about whether Mr. Gerace's grandfather was ever the head of local organized crime," he said.
Found documents
Prosecutors revealed that an Organized Crime Drug Enforcement Task Forces report was found in the basement of Bongiovanni's home when a search warrant was executed, and which an agent is prepared to testify that Bongiovanni should not have been in possession of. The defense objected to its admission and called any testimony Bongiovanni had it as part of or in furtherance of a conspiracy "speculative". The judge agreed.
Character issues
The government seeks to call witnesses, including police, in an attempt to demonstrate that Bongiovanni is dishonest.
This would include claims by Bongiovanni that he once that he hit a rock while driving instead of a guardrail (to avoid paying for damages) and removing an expensive antenna on a vehicle to place on his own.
While they may not be evidence of his involvement in any bribery conspiracy, Assistant U.S. Attorney Joseph Tripi insisted those incidents demonstrate Bongiovanni's willingness to "mislead and lie to his colleagues."
Defense lawyers argued successfully that not only did such allegations have anything to do with the case, but also that there's no proof the occurrences as described ever happened.
"I'm going to keep that out," the judge said.
Racial slurs
The prosecution claims Bongiovanni once asked a colleague if they "hated Italians" while suggesting to him that he ought to focus his investigations instead on Blacks and Hispanics, whom Bongiovanni allegedly used racial epithets to describe.
While the defense contended none of the allegations, even if true, were relative to the case, prosecutors insisted that Bongiovanni's speech was intended to steer the course of an investigation of Gerace and that pressing a colleague to act one way toward certain groups a certain way toward one group, constitutes an official act.
The defense also raised concerns that if prosecutors were able to allow those who allegedly heard Bongiovanni use racial epithets say that in front of a jury, it could gaslight jurors and prejudice those who will ultimately weigh the evidence.
The judge ruled that if during the course of testimony, should the allegation come up, he would instruct that the "n" word and the "s" word be avoided and that racial epithet should be used instead.
"Dirty little secret"
At one point in the proceeding Tripi blurted out that Bongiovanni had a "dirty little secret" and went on to say that beyond protecting drug dealers and taking bribes in exchange, Bongiovanni, despite being a DEA agent, was himself a drug user.
The government claims to have witnesses who will testify that during college and afterward Bongiovanni indulged in cocaine, and at times did so with a Buffalo police detective.
When asked by the judge to explain the relevance, Tripi contended such actions — though not charged — were inexorably intertwined with the allegations Tripi faces.
Tripi went on to say that not only did Bongiovanni have an interest in "hiding his own checkered past" but also in ensuring that the secret not be exposed, especially by his long ago dealer who might still be out there.
Tripi also said a witness will testify how Bongiovanni "sandbagged" an internal investigation which Bongiovanni became the subject of after he was accused of domestic violence, in order to protect his job and therefore his nefarious source of income as alleged by the government.
"You have to be in the game to play the game," said Tripi. "he was preserving his income stream (as a DEA Agent) but also preserving another income stream on top of that that was becoming more lucrative."
The defense objected by noting that such allegations did not constitute and overt act and were not charged in the indictment.
The judge agreed, saying it was a "stretch" and "pretty far afield" of trying to prove the elements of the case at hand, to the point where allowing testimony regarding the domestic violence incident would also be prejudicial.