A federal judge has declined to dismiss criminal charges against former DEA Agent Joseph S. Bongiovanni, saying there is no evidence that the U.S. Justice Department targeted him because of his Italian American heritage.
Bongiovanni and his attorneys have submitted “no evidence” to prove that his 2019 arrest was “motivated by a discriminatory purpose,” U.S. Magistrate Judge Michael J. Roemer wrote in a ruling obtained Wednesday by The Buffalo News.
Roemer’s ruling is only a recommendation that now must be reviewed by District Judge John L. Sinatra Jr., who will ultimately decide the issue.
Bongiovanni, 57, is a retired U.S. Drug Enforcement Administration agent who faces felony charges that he took $250,000 in bribes to protect local drug dealers whom he believed to be involved with “Italian Organized Crime” from prosecution.
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Bongiovanni denies taking any bribes or having Mafia connections. His lead defense attorney, James P. Harrington, has repeatedly accused prosecutors of targeting Bongiovanni for “selective prosecution” because he is Italian American.
“The government has noticed that all of the participants have Italian last names, and as such, has imagined the existence of an Italian American organized crime syndicate,” Harrington said in papers filed last year.
Federal prosecutors are looking for organized crime activities in a widespread investigation, just four years after the special agent in charge of the Buffalo FBI office said, “Some of the individuals who were leaders of the Mafia are still around. But their organized crime activities don’t exist anymore."
Harrington and co-counsel Jesse C. Pyle asked that the criminal case be dismissed because of selective prosecution based on ethnicity. They also alleged that agents who investigated Bongiovanni illegally seized and took information from his cellphone.
The U.S. Attorney’s Office in Buffalo has denied the discrimination claims, noting that lead prosecutor Joseph M. Tripi is himself Italian American.
Roemer ruled against Bongiovanni on Aug. 4, saying “the standard to prove selective prosecution is a demanding one.” Bongiovanni would have to show that “similarly situated individuals of a different race were not prosecuted,” Roemer wrote.
Bongiovanni and his attorneys can continue to challenge prosecutors’ claims of organized crime ties when the case goes to trial, the magistrate judge added.
“I’m disappointed with the ruling, but this battle is far from over,” Harrington told The News on Wednesday. “I still believe it was highly prejudicial and inappropriate for the government to make unfounded claims about Italian Organized Crime in this case in open court, in court papers and in press releases. We’ll continue to make our case with District Judge Sinatra.”
Peter G. Gerace Jr.
Peter Gerace Jr., owner of the Pharaoh's strip club in Cheektowaga, is accused of paying bribes to the former drug agent. A grand jury indicted the two men in February 2021.
Gerace's uncle, Joseph A. Todaro, has been accused by federal agents of being the leader of Buffalo’s Mafia family, but that has never been proven in court.
Gerace has denied the bribery charges, as well as charges of drug trafficking and sex trafficking at his strip club.
Bongiovanni was arrested by federal agents in November 2019, five months after investigators used a no-knock search warrant and “flash-bang” devices during an early-morning raid at his Town of Tonawanda home.
The indictment of Peter G. Gerace Jr. is the latest development in an investigation into organized crime in Buffalo, one that has already resulted in the arrests of retired DEA Agent Joseph Bongiovanni, a Buffalo high school teacher, Gerace’s brother and two other men.
According to court documents, some of the evidence used to indict Bongiovanni came from his cellphone, which was temporarily seized from him at a Baltimore airport in April 2019 as he and his family returned from a Dominican Republic vacation and passed through customs. Harrington argues that the seizure of the phone was illegal, and says any evidence taken from the phone should be thrown out of the prosecution’s case.
Roemer said he finds that the seizure of the phone “violated Bongiovanni’s constitutional rights” but also found that federal agents acted with a “good-faith belief” that their conduct was “lawful.”
Roemer concluded in a “close call” that prosecutors should be allowed to continue using evidence from the seized phone.
Roemer also ruled against Gerace, who sought to suppress all evidence taken from his Clarence home, Pharaoh's and Gerace’s seized cellphone during the investigation that led to his arrest.
Steven M. Cohen, Gerace’s attorney, also contends that prosecutors acted improperly by bringing mob allegations into their case.
