Judge acquits Bongiovanni of one of his corruption charges

U.S. District Judge Lawrence Vilardo acquitted former drug enforcement agent Joseph Bongiovanni of one count of bribery.

Ten days before Bongiovanni’s retrial, a federal judge acquitted him of charges that Bongiovanni received an unspecified amount from strip club owner Peter Gerace Jr. to help him and his Pharaoh’s Gentlemen’s Club avoid federal narcotics investigations and induce the FBI to drop an investigation.

“After careful consideration, this court finds that while this is a difficult case that tests the line between drawing an admissible inference and impermissible speculation, only conjecture and supposition could lead a jury to determine that the money constituted a bribe rather than a gratuity for past actions or in the hope of future action, or a reimbursement or genuine gift to a longtime friend,” Vilardo said in his written decision.

Key testimony in the count came from Katrina Nigro, Gerace’s ex-wife, who testified that she twice gave Bongiovanni “thick” envelopes containing cash at Pharaoh’s and said Gerace gave her a birthday card containing $5,000.

At Bongiovanni’s first trial earlier this year, defense attorneys Parker MacKay and Robert Singer testified that Bongiovanni was never caught on a microphone, camera or recorder accepting bribes. No money was handed over. Nigro acknowledged she did not see what was in the two envelopes she gave Bongiovanni. Even if the envelopes contained cash, she did not know why Gerace gave them to Bongiovanni.

“No one testified about what the money was used for,” Vilardo said in his decision. “Nigro admitted she didn’t know why Gerace gave it to Bongiovanni.”

“More importantly, there was no circumstantial evidence that would allow a jury to infer beyond a reasonable doubt that the payments were bribes, as opposed to gratuities or benign exchanges between friends,” Vilardo added. “If there had been, for example, a temporal connection between the money and the acts committed, that could have supported a finding that Bongiovanni accepted the money in exchange for future protection from Gerace. Or if Nigro had testified — as she did before the grand jury — that she had seen Bongiovanni receive envelopes from Gerace on “approximately 30” occasions between 2013 and 2016, including giving envelopes to Bongiovanni herself five or six times, at Gerace’s direction, that likely would have been sufficient.”

“But considering only what was presented to the jury at trial, as this court must do, there is simply no evidence – circumstantial or otherwise – from which a rational juror could infer beyond a reasonable doubt that the money was a bribe in exchange for Bongiovanni performing official acts,” the judge said.

“We are very pleased with the court’s decision to enter an acquittal on the bribery charge allegedly involving Peter Gerace and believe it supports our arguments that this case is based on impermissible speculation,” MacKay said. “Notably, the court’s decision underscores how Katrina Nigro’s testimony differed so greatly from her grand jury testimony that what was actually revealed at trial was not sufficient to support the prosecution.”

In the former federal agent’s first trial, the jury returned a partial verdict on the bribery and kickback charges. On April 12, the jury, after an eight-week trial, convicted Bongiovanni of one count of obstruction of justice and one count of lying to federal agents, both involving a file kept at his home after his retirement.

Jurors acquitted Bongiovanni, 60, of deleting data from his DEA-issued cellphone when he retired. They reached no verdict on 12 other charges, including protecting members of the Ron Serio drug trafficking organization from arrest and tipping them off to informants in exchange for at least $250,000, as well as other charges involving Gerace, the owner of Pharaoh’s Gentlemen’s Club near the airport. Vilardo declared a mistrial on those counts.

Vilardo declined to dismiss the guilty verdicts or the charge that he conspired to keep Pharaoh’s a drug-trafficking establishment.

Prosecutors accused Bongiovanni, by shielding Gerace from investigation, of helping Pharaoh’s become a drug trafficking hub where cocaine, marijuana and other drugs were used and distributed.

Among those who testified about drug use at Pharaoh’s, a former dancer told jurors there were “girls using … customers using, employees using.”

Despite testimony about drug use at the club, Bongiovanni’s defense attorneys said there was no evidence that Bongiovanni was aware of it. No one testified that they saw Bongiovanni using drugs at the club or associated with people who did. A few testified that they saw Bongiovanni at the club only a few times.

Vilardo ruled that prosecutors had presented facts from which a rational jury could infer beyond a reasonable doubt that Bongiovanni knew about drug activity at Pharaoh.

“As the government observed, numerous witnesses testified to public drug use at Pharaoh’s, and other witnesses testified that Bongiovanni visited Pharaoh’s on multiple occasions,” Vilardo said. “Particularly given Bongiovanni’s DEA training, a jury could reasonably infer that he knew the establishment was considered a drug trafficking location.”

As for the jury’s guilty verdicts on the obstruction of justice count and the lying to federal agents count, both related to the DEA file found in Bongiovanni’s basement, “it really comes down to a question of credibility, which is solely a matter for the jury to decide,” Vilardo concluded.

A Niagara Falls narcotics detective and a DEA task force agent testified that there was no reason for a file on a case he investigated — without Bongiovanni’s help — to be in Bongiovanni’s basement.

Defense attorneys said Bongiovanni kept the DEA files at home because he knew he would be investigated when he retired and he didn’t trust his superiors or colleagues. So he took the file home because it contained information about the cases he was working on. If he wanted to destroy the file, he would have burned it. Bongiovanni wanted to destroy it to protect himself, MacKay and Singer said.

“Rather than believing Bongiovanni’s stated reasons for taking the case home, it appears that the jury believed the extensive testimony of other DEA agents that it was against Bongiovanni’s policy to take the case home and that there was no legitimate reason to do so,” Vilardo said in his decision. “And from that testimony — combined with the other evidence that Bongiovanni used his position as a DEA agent to protect the drug conspiracy involved in this case — the jury could have reasonably inferred that Bongiovanni’s reason for taking the case home was to obstruct justice.”