USA v. Bongiovanni, et al.

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
UNITED STATES OF AMERICA,
v.
JOSEPH BONGIOVANNI,
Defendant.
19-CR-227-LJV-MJR
DECISION & ORDER
Before the Court is a motion for reconsideration filed by the defendant, Joseph
Bongiovanni. Docket Item 1649. Bongiovanni asks this Court to reconsider its decision
on several objections to the Presentence Investigation Report (“PSR”). See id. More
specifically, he argues that “[t]he Court’s reliance on [Robert] Kaiser is clearly erroneous
and manifestly unjust,” see id. at 3-19; “[t]he evidence cited by the Court to apply the
firearm enhancement to Count Group 1 does not support such a finding,” see id. at 20-
23; and “[t]he Court’s decision to disregard the inconsistent verdict and the jury’s actions
at the conclusion of this trial is not proper,” see id. at 24-31.1 After careful
consideration, the Court rejects each of these arguments and denies Bongiovanni’s
motion for reconsideration.
LEGAL PRINCIPLES
“Motions for reconsideration brought in criminal cases are assessed under the
civil reconsideration standard, since there is no express criminal procedure provision for
1 Page numbers in docket citations refer to ECF pagination.
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such motions.” United States v. Stevens, 2021 WL 48516, at *1 (W.D.N.Y. Jan. 6,
2021) (citing United States v. Larson, 2013 WL 6196292, at *2 (W.D.N.Y. Nov. 27,
2013)), aff’d, 857 F. App’x 44 (2d Cir. 2021) (summary order). “Reconsideration is
generally justified in any one of the following three circumstances: (1) an intervening
change in controlling law; (2) new evidence; or (3) the need to correct a clear error of
law or to prevent manifest injustice.” Id. (citing Virgin Atl. Airways, Ltd. v. Nat’l
Mediation Bd., 956 F.2d 1245, 1255 (2d Cir. 1992)); see also Shrader v. CSX Transp.,
Inc., 70 F.3d 255, 257 (2d Cir. 1995) (explaining that “reconsideration will generally be
denied unless the moving party can point to controlling decisions or data that the court
overlooked—matters, in other words, that might reasonably be expected to alter the
conclusion reached by the court”).
DISCUSSION2
As an initial matter, the Court notes that Bongiovanni does not raise new
arguments or identify anything that this Court overlooked. Instead, he essentially
rehashes arguments that this Court already has considered and rejected. Nonetheless,
the Court has again carefully considered each of his arguments, and for the reasons
explained previously, see generally Docket Item 1632, as well as those outlined below,
finds that they do not change the Court’s calculus.
2 The Court assumes the reader’s familiarity with the factual background and will
refer to the facts only as necessary to explain its analysis.
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I. 	DRUG WEIGHT
Bongiovanni spills a great deal of ink attacking the credibility of his confidential
source, Robert Kaiser, and the reliability of information Kaiser gave Bongiovanni about
the amount and kinds of drugs the Serio DTO was distributing. See Docket Item 1649
at 3-19. To start, it is important to keep in mind that the government’s burden of proof at
sentencing is by a preponderance of the evidence. See United States v. Salazar, 489
F.3d 555, 557 (2d Cir. 2007) (per curiam). This Court found that—based on what
Kaiser told Bongiovanni and what Bongiovanni memorialized on DEA forms—the
government had shown by a preponderance of the evidence that certain amounts and
kinds of drugs were reasonably foreseeable to Bongiovanni as part of the Serio DTO.
See Docket Item 1632 at 9-20.
Bongiovanni argues that because Kaiser was not a member of the Serio DTO,
Kaiser could not have had reliable information about it. See Docket Item 1649 at 4-7.
But there is nothing in the record suggesting that Bongiovanni had doubts about that
information when he signed Kaiser up as a confidential source. On the contrary,
Bongiovanni indicated that Kaiser’s performance was “very positive.” Gov. Ex. 9E-3.
What is more, the government’s theory—which the jury seems to have
accepted—was that Bongiovanni used Kaiser to investigate a drug dealer who was
unaffiliated with the Serio DTO because Bongiovanni did not want Kaiser to implicate
the Serio DTO. See Docket Item 1488 at 31. That would have been unnecessary if, as
Bongiovanni suggests, Kaiser had no ability to get any useful information about the
Serio DTO.
Bongiovanni also says that this Court’s calculation of two kilograms of cocaine “is
anchored to nothing in the record.” Docket Item 1649 at 17. Not so. The Court’s
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estimate was anchored in Kaiser’s statement that the Serio DTO was distributing
“multiple kilograms” of cocaine. See id. at 12. “Multiple” means at least two.
In fact, Bongiovanni himself authored a DEA-6 report stating that Robert Mettal
and Thomas Serio—members of the Serio DTO—previously had been “arrested in a
New York State cocaine investigation . . . in 1998 with approximately [five] kilograms of
cocaine.” See Gov. Ex. 8I at 1. Despite Bongiovanni’s knowledge of those prior
arrests, the Court did not attribute to Bongiovanni all five kilograms of cocaine that
Ronald Serio testified were within the scope of the conspiracy. See Docket Item 1632
at 17 (“But Mettal’s and [Thomas] Serio’s prior acts—which occurred a decade before
the alleged start of the conspiracy—are insufficient for this Court to find, even by a
preponderance of the evidence, that Bongiovanni could reasonably foresee that those
individuals would again distribute that quantity.”). But those prior arrests, coupled with
the information provided by Kaiser, certainly showed by a preponderance of the
evidence that Bongiovanni knew the Serio DTO to deal in cocaine. And so the Court
chose to apply the minimum amount of cocaine supported by Kaiser’s statements to
Bongiovanni: two kilograms. And the Court has no reason to second guess that
conclusion.
II. 	FIREARM ENHANCEMENT
There is no dispute that members of the Serio DTO possessed firearms; the
question is whether possession of those firearms was reasonably foreseeable to
Bongiovanni. This Court previously found that it was, and it based that finding largely
on a DEA report that Bongiovanni wrote. 	See Docket Item 1632 at 22-23. In that
report, Bongiovanni said that Kaiser told Bongiovanni that “Kaiser ha[d] been
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approached by Serio and Robert Mattal in the past to assist the Serio DTO in
transporting and safeguarding cocaine, marijuana, and firearms from California and
New York City to Buffalo, New York.” Gov. Ex. 9E-4 at 2 (emphasis added); see Docket
Item 1632 at 23. The Court further noted that, as the trial evidence demonstrated,
Bongiovanni was a trained DEA agent who knew that firearms “are among the tools of
the drug trade.” See Docket Item 1632 at 23. And that, “combined with the information
from the DEA report about the Serio DTO specifically, supported a finding that the
conspiracy’s possession of firearms was reasonably foreseeable to Bongiovanni.” See
id.
Bongiovanni argues that the DEA report cited above, Gov. Ex. 9E-4, which
documented Kaiser’s establishment as a confidential source, was inconsistent with Gov.
Ex. 8I, the DEA-6 report “documenting what Kaiser said in his April 30, 2013 debrief.”
Docket Item 1649 at 20. More specifically, Gov. Ex. 8I documented that Kaiser had
provided information about “an unknown source of supply of automatic handguns and
Assault rifles that [Kaiser] claim[ed he] could have transported from San Diego.” Gov.
Ex. 8I at 2. But according to this report, Kaiser “stated that other than the California
source for firearms, [he] did not have any information to offer at that time” regarding
firearms trafficking. Id. Thus, Bongiovanni says that the information in Gov. Ex. 9E-4
on which this Court relied is no more than “[a] scrivener’s error.” Docket Item 1649 at
23.
The Court has carefully considered this argument but ultimately finds it
unpersuasive. First, Bongiovanni wrote the report. See Gov. Ex. 9E-4 at 3. So it was
not some other agent’s “scrivener’s error”; it was Bongiovanni’s own statement that
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firearms were associated with the Serio DTO. Moreover, as the government observed
and this Court previously found, Bongiovanni’s knowledge as a DEA agent that
trafficking of large drug quantities often involves firearms bolsters the conclusion that
Bongiovanni could reasonably foresee that members of the Serio DTO possessed
firearms. See Docket Item 1632 at 23.
The Second Circuit’s decision in United States v. Soto, 959 F.2d 1181 (2d Cir.
1992) supports this conclusion. There, the Second Circuit found that “[g]iven the large
quantity of narcotics and narcotics paraphernalia in the apartment where [the defendant]
was arrested, and given the fact that three types of various caliber ammunition were
strewn about the apartment in plain view, . . . the district court’s determination that
possession [of firearms] was reasonably foreseeable was [not] clearly erroneous.” Id. at
1187. In reaching that conclusion, the panel relied on two cases from other circuits that
found it proper to infer the reasonable foreseeability of possession of a firearm from
transactions involving large drug quantities. See United States v. Bianco, 922 F.2d 910,
913 (1st Cir. 1991) (finding that district court “permissibly relied on the value and
amount of the marijuana, which these appellants had reason to believe would be
involved in their joint criminal venture, for its inference that a codefendant’s possession
of a firearm was reasonably foreseeable to appellants” (emphasis omitted)); United
States v. Garcia, 909 F.2d 1346, 1350 (9th Cir. 1990) (“In light of the large amount of
drugs involved in this case, [coconspirator]’s possession of the gun was reasonably
foreseeable.”). Although Bongiovanni correctly notes that there was no evidence that
he saw any drug or firearm in “plain view” as the defendant did in Soto, see Docket Item
1649 as 23, that is not the point. Rather, the point is that Bongiovanni, a trained DEA
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agent experienced in narcotic investigations, could reasonably foresee his
coconspirator’s possession of firearms in connection with a drug operation involving
multiple kilograms of cocaine and over a hundred pounds of marijuana that also were
reasonably foreseeable to him. See Docket Item 1632 at 15-18. And that is especially
so when he wrote a DEA report referring to firearms and the standard of proof is by a
preponderance of the evidence, not beyond a reasonable doubt.
III. 	COURT’S “DISREGARD” OF THE JURY’S “INCONSISTENT VERDICT”
Finally, Bongiovanni contends that “[t]he Court’s decision to disregard the
inconsistent verdict and the jury’s actions at the conclusion of this trial is not proper.”
Docket Item 1649 at 24-31. 	More specifically, he argues that neither United States v.
Acosta, 17 F.3d 538 (2d Cir. 1994), nor United States v. Powell, 469 U.S. 57 (1984),
prevents this Court from “speculating” about the jury’s thought process in the context of
sentencing. See Docket Item 1649 at 24. “In ruling that it is confined to the same
bounds in sentencing as it is during sufficiency review,” Bongiovanni says, “the Court
placed an unnecessary (and unprecedented) restraint on its power.” Id. at 26. And
without that restraint, Bongiovanni says, this Court should read the tealeaves in the
jury’s verdict.
The Court agrees with Bongiovanni that the standard at sentencing is different
than on a Rule 29 motion. And in referring back to its Rule 29 decision when deciding
Bongiovanni’s sentencing objections, see Docket Item 1632 at 13, 22, the Court did not
mean to imply that the standards were the same. But the evidence on which the
government relied in opposing both motions overlapped significantly. And that evidence
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supported the Court’s conclusion that the jury’s verdict did not necessarily mean what
Bongiovanni says it meant.
In the context of the sentencing objections, the Court carefully reviewed the
evidence and the jury verdict in light of Bongiovanni’s argument. As it must, the Court
made its findings by a preponderance of the evidence. And based on that review, the
Court found by a preponderance of the evidence that “there was ample evidence at trial
suggesting that Bongiovanni was aware of more than just [Lou] Selva’s basement
grow.” See id. at 14. The Court again has reviewed that finding in light of
Bongiovanni’s motion for reconsideration. But nothing in that motion changes the
Court’s conclusion.
CONCLUSION
For all those reasons, Bongiovanni’s motion for reconsideration, Docket Item
1649, is DENIED. Sentencing will proceed as scheduled on January 21, 2026. See
Docket Item 1639.
SO ORDERED.
Dated: 	January 8, 2026
Buffalo, New York
/s/ Lawrence J. Vilardo
LAWRENCE J. VILARDO
UNITED STATES DISTRICT JUDGE
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