USA v. Bongiovanni, et al.

OCR transcription for search; preserved printed pages are authoritative

Case 1:19-cr-00227-LJV-MJR Document 330 _~ Filed 12/19/22 Di 1 of 14

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UNITED STATES DISTRICT COURT oe
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UNITED STATES OF AMERICA 1:19-CR-227 JLS (MJR)
REPORT AND
Vv. RECOMMENDATION

PETER GERACE,

Defendant.

This case has been referred to the undersigned by the Hon. John L. Sinatra, Jr.
pursuant to 28 U.S.C. § 636(b)(1) for all pre-trial matters and to hear and report upon
dispositive motions. (Dkt. No. 4) Before the Court is defendant Peter Gerace’s request for
leave to file an untimely suppression motion. (Dkt. No. 316) For the following reasons, the
Court recommends that defendant's request to file a late suppression motion be denied.

RELEVANT FACTS AND BACKGROUND

On April 27, 2019, Peter Gerace arrived at Newark International Airport (“Newark
Airport’) following a trip to Jamacia. (Dkt. No. 316-2, pgs. 11-12; 53-56) At that time, his
cell phone was seized by Customs and Border Protection officers and subjected to a
warrantless search. (/d.) About six months later, on October 31, 2019, an indictment was
filed in this matter, charging Joseph Bongiovanni, a retired agent for the Drug
Enforcement Agency (“DEA”), with, inter alia, Conspiracy to Defraud the United States;
Conspiracy to Distribute Controlled Substances; Bribery; Obstruction of Justice; and
Making False Statements. (Dkt. No. 1) The indictment enumerated various overt acts
allegedly committed by Bongiovanni and others in furtherance of the purported conspiracy

to defraud. (/d.) Overt Act 49 specifically referenced a voicemail left for Bongiovanni by

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Co-Conspirator 1, wherein Co-Conspirator 1 asked Bongiovanni about law enforcement'’s
ability to track or “ping” certain types of cell phones. (/d.) According to the Government,
Co-Conspirator 1 is a reference to Gerace and the cell phone number listed in Overt Act
49 is the number associated with the phone seized from Gerace and searched at the
Newark Airport on April 27, 2019. On December 12, 2019, a little over two months after
the indictment was filed against Bongiovanni, a federal search warrant was executed at
Gerace’s home and business. (See 1:19-MJ-5303) On July 8, 2020, attorney Steven
Cohen, Esq. wrote a letter to the Assistant United States Attorney assigned to this case
indicating, in part, that he was working with attorney Joel Daniels, Esq. to “recover
evidence” on behalf of Gerace. (Dkt. No. 320, pg. 4) In July and August of 2020, the
Government and Cohen corresponded regarding electronic devices and other property
seized during the search of Gerace’s home and business. (/d.)

On February 25, 2021, an 18-count second superseding indictment was returned
by the grand jury, naming both Gerace and Bongiovanni as defendants in this case.’ (Dkt.
No. 89) Gerace was charged with Conspiracy to Defraud the United States; Paying a
Bribe to a Public Official; Maintaining a Drug-Involved Premises; Conspiracy to Distribute
Controlled Substances; and Conspiracy to Commit Sex Trafficking. (/d.) Gerace and
Bongiovanni were arraigned on March 4, 2021, at which time Gerace was represented by
attorney Daniels. (Dkt. No. 95) This Court then entered a Sixth Amended Scheduling

Order, applicable to both defendants, which required all pretrial motions to be filed on or

1 A first superseding indictment, filed on June 4, 2020, charged Bongiovanni as well as Michael
Masecchia. (Dkt. No. 46) According to the Government, Gerace continued to be referred to as
unnamed Co-Conspirator 1 in the first superseding indictment. Defendant Masecchia entered a
plea agreement with the Government on December 9, 2020. (Dkt. Nos. 68, 69) Thus, Gerace
and Bongiovanni are the current pending defendants and the second superseding indictment is
the operative charging document here.

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before July 7, 2021. (Dk. No. 97) On March 22, 2021, attorney Joseph LaTona, Esq. filed
a Limited Notice of Appearance, indicating that he had been retained on a limited basis
to work with attorney Daniels with respect to handling pretrial motions and hearings in this
case. (Dkt. No. 106) On April 5, 2021, the Government formally disclosed, to Gerace and
his defense counsel, information obtained as a result of the April 27, 2019 search of
Gerace’s phone at the Newark Airport.2 (Dkt. No. 320, pgs. 14-15) The Government
specifically produced, to Gerace and his counsel, the entire cell phone extraction; isolated
text messages between Bongiovanni and Gerace; an isolated voicemail message
between Bongiovanni and Gerace; a Report of Information (ROI) authored by Special
Agent Curtis Ryan documenting the airport border search of Gerace’s phone; and chain
of custody documents. (/d.) On June 15, 2021, attorney Cohen sent an email to the
chambers of Judge Sinatra, the District Judge presiding over this matter, indicating that
he would be appearing as additional defense counsel to assist attorneys Daniels and
LaTona in their representation of Gerace. (Dkt. No. 320, pg. 6) On July 1, 2021, counsel
for defendants sought an extension of time through July 12, 2021 to file pretrial motions,
which was granted by this Court. (Dkt. Nos. 140, 142)

On July 12, 2021, Gerace and Bongiovanni filed extensive, lengthy pretrial
motions. Defendants’ submissions included suppression motions; motions to dismiss the
indictment for various reasons; requests for grand jury transcripts and to strike surplusage
from the indictment; and numerous omnibus discovery demands. Bongiovanni moved to

suppress, inter alia, evidence recovered from a warrantless search of his cell phone at

7It appears that the April 2021 disclosure regarding the search of Gerace’s phone was the
second time that this information was disclosed in this case. The Government represents that it
previously disclosed the information on May 22, 2020, before the indictment was superseded to

add Gerace as a defendant.

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Baltimore Washington International Airport (“BWI”) on April 23, 2019. (Dkt. Nos. 81, 149)
Gerace moved to suppress evidence recovered from the execution of the federal search
warrant at his home and business.? (Dkt. Nos. 147-48) However, Gerace did not move to
suppress any of the evidence recovered from the warrantless search of his cell phone at
Newark Airport on April 27, 2019. On or about August 10, 2021, attorney Daniels withdrew
from his representation of Gerace in this case as a result of a conflict, and it was indicated
to the District Court that Gerace would continue with attorneys LaTona and Cohen
representing him.

This Court held an evidentiary hearing on November 18, 2021 and January 5, 2022
with respect to the warrantless search of Bongiovanni’s phone at BWI on April 23, 2019.
(Dkt. Nos. 219, 233) Additional briefing followed regarding this issue as well as a number
of other issues raised in the defendants’ motions. On April 26, 2022, this Court heard oral
argument as to all pretrial motions filed by both defendants. (Dkt. No. 278) The argument
addressed, inter alia, Bongiovanni’s motion to suppress evidence obtained from the
warrantless search of his phone at BWI; Gerace’s motion to suppress evidence
discovered from the search of his home and business; defendants’ requests to dismiss
the indictment and for disclosure of grand jury material; and the parties’ various omnibus

discovery demands.’ (Dkt. No. 278) On August 5, 2022, this Court issued a Report,

3 All of Gerace’s pretrial motions were filed and argued by attorney LaTona.

4During oral argument, LaTona referenced the April 27, 2019 warrantless border search of his
client’s phone. LaTona claimed that the search of Gerace’s phone was improper and that any
information obtained from the phone and later used in support of the search warrants for
Gerace’s home and business was obtained illegally. The Government responded that Gerace’s
lawyers have been in possession of discovery regarding the phone search since the time of
Gerace’s indictment. This Court then stated that (1) this was the very first time it was made
aware that a warrantless search of Gerace’s phone had occurred; and (2) the time for filing a
motion to suppress evidence obtained as a result of that search had long passed, and any such
motion would be untimely under the Court’s prior scheduling order.

4

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Recommendation and Order which (1) recommended denying Gerace’s motions to
dismiss the indictment and to suppress evidence recovered from the search of his home
and business; and (2) ruled on Gerace’s various omnibus discovery demands. (Dkt. No.
291) Also on August 5, 2022, this Court issued a Report, Recommendation and Order
which (1) recommended denying Bongiovanni’s motions to dismiss the indictment and to
suppress evidence recovered from the search of his cell phone at BWI on April 23, 2019;
and (2) ruled on Bongiovanni’s various omnibus discovery demands.® (Dkt. No. 292)

On October 28, 2022, over one year and three months after pretrial motions were
due to be filed in this case according to the Sixth Amended Scheduling Order, attorney
Cohen filed a letter, on behalf of Gerace, requesting leave to file a motion to suppress
with a supporting memorandum in excess of the page-limit prescribed by the Local Rules
for the Western District of New York. (Dkt. No. 311) This Court then demanded that
Gerace show cause as to why any such suppression motion would not be untimely under
the scheduling order previously issued in this case. (Dkt. No. 312) On November 14,
2022, Gerace filed the instant motion seeking leave to file an untimely suppression motion
with regard to, inter alia, the warrantless search of his cell phone at Newark Airport on

April 27, 2019.° (Dkt. No. 316) The Government filed a response in opposition to Gerace’s

5On November 22, 2022, the District Court issued a Decision and Order affirming the
recommendations and orders in the Report and Recommendations, including the recommended
denials of defendants’ motions to suppress evidence and dismiss the indictment. (Dkt. No. 319)
6 |t appears that Gerace is also seeking to file untimely motions to suppress evidence recovered
from the warrantless searches of cell phones belonging to two of his employees. Gerace does
not provide an explanation as to his basis of standing to challenge the search of phones
belonging to his employees and this Court is skeptical that any such basis would exist.
However, because the Court finds that defendant’s request to file any new suppression or
pretrial motions should be denied as untimely, it need not address the standing issue.

5

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motion for permission to file an untimely suppression motion on November 28, 2022 (Dkt.
No. 320), and Gerace filed a reply on December 2, 2022 (Dkt. No. 327).

DISCUSSION

Rule 12 of the Federal Rules of Criminal Procedure provides that certain defenses,
objections, and requests, including motions for suppression of evidence, “must be raised
by pretrial motion if the basis for the motion is then reasonably available.” See Fed. R.
Crim. P. 12(b)(3)(C). Rule 12 also permits the court to set a deadline for the parties to
make pretrial motions. See Fed. R. Crim. P. 12(c)(1). Ifa party does not meet the court's
deadline for making a pretrial motion, the motion is to be treated as untimely. See Fed.
R. Crim. P. 12(c)(3). However, “a court may consider the [untimely motion] if the party
shows good cause” for the late filing. /d. Second Circuit case law has made clear that a
party’s failure to timely make a Rule 12(b)(3) pretrial motion constitutes a complete waiver
of that issue, absent a showing of good cause. United States v. Simmons, 08-CR-1280,
2020 U.S. Dist. LEXIS 202878 (S.D.N.Y. Oct. 29, 2020). See also United States v.
Mustafa, 753 F. App'x 22, 44 (2d Cir. 2018) (summary order) ("A district court is not
required to entertain an untimely motion and its discretion to do so depends upon the
movant showing good cause."); United States v. Yousef, 327 F.3d 56, 125 (2d Cir. 2003)
(A "suppression argument that was made in an untimely fashion before the district court"
is waived "unless there is a showing of cause.”).

As explained above, this Court set a deadline of July 7, 2021 for the filing of pretrial
motions, which it later extended to July 12, 2021 by request of defendants. However,
Gerace did not seek leave to file a motion to suppress evidence recovered from the April

27, 2019 border search of his phone until October 28, 2022, over one year and three

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months past the deadline for filing pretrial motions in this case. Thus, the proposed motion
is plainly untimely and may be considered only if Gerace can demonstrate good cause
for the lengthy delay. For the reasons that follow, the Court finds that no good cause
exists to consider the late motion.

To satisfy the “good cause” standard of Rule 12(c)(3), courts in this Circuit
generally require a defendant to “establish that the basis for the motion was not (and
could not have been) known before the expiration of the motion deadline.” United States
v. Sanders, 19-CR-00125, 2020 U.S. Dist. LEXIS 247087 (W.D.N.Y. Oct. 9, 2020). See
also United States v. Robinson, 357 F. Supp. 3d 221, 224 (E.D.N.Y. 2019) (“the analysis
of whether a suppression claim has been preserved focuses on whether the particular
ground for suppression pressed later could have been, but was not, advanced prior to the
expiration of the Court-mandated guidelines.”). Here, Gerace and his defense counsel
had ample knowledge of the basis for this motion well before the expiration of the Court's
scheduling order. Gerace was present when his phone was seized and searched by law
enforcement at Newark Airport on April 27, 2019, months before his indictment in this
case. Both the initial indictment naming only Bongiovanni and the superseding indictment
which charged Gerace referenced the number associated with Gerace’s cell phone as
well as communications between the defendants. The Government represents, and the
defense does not dispute, that Gerace was provided with formal discovery regarding the
phone search on April 5, 2021. That disclosure included the entire cell phone extraction;
text and voice messages exchanged between Gerace and Bongiovanni; and a chain of
custody report. Indeed, by no later than early April of 2021, three months prior to the

expiration of the pretrial motion deadline, it would have been more than clear to Gerace

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and his attorneys that (1) a warrantless border search of Gerace’s phone had occurred
on April 27, 2019 and (2) the Government intended to introduce evidence obtained from
that search in their prosecution of Gerace. Thus, defendant cannot now claim that he or
his counsel lacked knowledge of the facts and evidence necessary to properly support a
motion to suppress the border search by the July 12, 2021 deadline.

In his response to this Court’s order to show cause, attorney Cohen seems to
argue that good cause exists for the late filing because of the extensive amount of
discovery provided by the Government in this case and the substantial amount of time it
has taken to review that material. The Court rejects this argument. Gerace was present
for the seizure and search of his cell phone at Newark Airport. Defense counsel was
provided with discovery regarding the circumstances and results of the search
approximately three months before the pretrial motion deadline. Indeed, the Court sees
no reason why any additional review of documents and evidence would have been
needed to timely raise a suppression issue as to a search of defendant’s phone. See e.g.,
United States v. Nayyr, 221 F. Supp. 3d 454 (S.D.N.Y. Nov. 18, 2016); affirmed at United
States v. Mulholland, 702 Fed. Appx. 7 (2d Cir. 2017) (motion to suppress computer
evidence was untimely, and therefore deemed waived, where there was no dispute that
defendant was made well aware before the motion deadline that his wife consented to
the search of the computer at issue, and defendant failed to assert a timely challenge to
that consent).

Moreover, Gerace never requested an extension of time past the July 12, 2021
motion deadline based either on his attorneys’ inability to fully review discovery material

or for any other reason. See United States v. Billings, 15-CR-00050, 2015 U.S. Dist.

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LEXIS 176160, at *4 (W.D.N.Y. Dec. 18, 2015) (denying motion to suppress under Rule
12(c)(3) where defendant brought motion more than a month after the filing deadline,
which already had been extended twice). To the contrary, Gerace filed extensive pretrial
motions and omnibus discovery demands covering a wide range of issues, suggesting
that defense counsel spent a substantial amount of time reviewing the facts and law at
issue in this case before making strategic and conscientious decisions as to what pretrial
challenges to pursue. Nonetheless, regardiess of whether the failure to timely file the
suppression motion was the result of a purposeful decision by defense counsel at the
time, or a failure of counsel to conduct a thorough review of the applicable facts and law,
good cause has not been established. Indeed, “[a] strategic decision by counsel not to
pursue a Claim, inadvertence of one’s attorney, and an attorney's failure to timely consult
with his client are all insufficient to establish cause [under Rule 12(c)(3).].” United States
v. Atuana, 816 Fed. Appx. 592, 596-97 (2d Cir. 2020); accord Yousef, 327 F.3d at 125
(2d Cir. 2003) (internal quotations omitted); Indiviglio v. United States, 612 F.2d 624, 631
(2d Cir. 1979) (counsel's failure to make timely suppression motion constituted waiver
whether omission resulted from inadvertence or strategy.)’

The Court further rejects the argument that good cause exists because attorney

Cohen did not become trial counsel in this case until August of 2021. The record here

7 The Court also rejects attorney Cohen’s argument that good cause is shown because it was
not until October of 2022, when he finished reviewing discovery and conducting witness
interviews, that he learned of the search of phones belonging to Gerace’s employees. First,
Gerace has not established standing to challenge the search of phones belonging to other
individuals. Second, even if he could establish standing, an attorney’s failure to timely review
discovery materials does not establish good cause under Rule 12(c)(3). “[C]ourts have held that
counsel's failure to conduct proper pretrial investigation does not establish good cause for a
defendant's failure to raise an argument covered by Rule 12(b)(3) in a timely fashion.” United
States v. Duncan, 18-CR-289, 2019 U.S. Dist. LEXIS 193839 (S.D.N.Y. Nov. 7, 2019); accord
United States v. Howard, 998 F.2d 42, 52 (2d Cir. 1993).

9

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shows that Cohen was communicating with the Government, on Gerace’s behalf, as early
as July 8, 2020, when Gerace was being investigated but had not yet been indicted. On
June 15, 2021, approximately a month before the pretrial motion deadline, Cohen sent
an email informing the District Judge that he would be representing Gerace as additional
defense counsel in this case. Thus, the record belies defendant's claim that Cohen was
not substantially involved in this matter until August of 2021. Moreover, when Cohen
joined the defense team and in what capacity is largely irrelevant to the Court's inquiry
here. Starting from his initial appearance on the indictment, and throughout the pendency
of this case, Gerace has been represented by experienced, competent criminal defense
attorneys who were fully aware of the facts surrounding the border search of the phone
and could have filed a timely motion challenging that search.’ In fact, courts have
recognized that the retention of new counsel is insufficient to establish good cause for
purposes Rule 12(c)(3). Sanders, 2020 U.S. Dist. LEXIS 247087, *8. See also United
States v. Trancheff, 633 F.3d 696, 698 (8th Cir. 2011) (‘“[t]he desire to suppress
incriminating evidence and the retention of new counsel are not by themselves sufficient
to establish good cause to justify relief from a waiver of a defense, objection, or request

under Rule 12”).°

® Attorney LaTona entered a notice of appearance on March 22, 2021, which stated that he
would handle all pretrial matters. LaTona received discovery regarding the April 27, 2019 search
of Gerace’s phone by April 5, 2021. LaTona filed pretrial motions on behalf of Gerace three
months later, on July 12, 2021, and failed to raise the border search issue at that time.

° For similar reasons, the Court rejects defendant’s argument that good cause exists because an
associate hired to assist attorney Cohen with this case accepted a new position in June of 2022
and was no longer assisting Cohen with discovery review. Throughout these proceedings,
Gerace has been represented by at least two, and sometimes three, capable and zealous
advocates. The associate noted here was not counsel of record. Her departure from Cohen’s
firm does not constitute good cause for the delayed filing, especially considering that (1) Gerace
has had competent representation throughout this matter; (2) the information necessary for
making the motion at issue was provided at least three months before the deadline; and (3)
defendant never requested an extension of time to review discovery materials.

10

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Defendant also argues that the untimely filing is a “good faith response” to the
suppression hearing conducted by this Court as to the border search of Bongiovanni’s
phone and this Court’s subsequent Report and Recommendation.'° Gerace contends that
the evidentiary hearing as to Bongiovanni’s motion shed light on “the procedure and
methodology of the warrantless border search...and provided an important legal
perspective” which was not available to him prior to the motion deadline. The Court
disagrees that this constitutes good cause. In United States v. Robinson, defense counsel
sought leave to file an untimely suppression motion on the basis that he recently
discovered “convincing and credible evidence” that would have made the basis for his
suppression motion stronger than it had been before the expiration of the scheduling
order. 357 F. Supp. 3d 221 (E.D.N.Y. Mar. 1, 2019). The Eastern District Court disagreed
that the discovery of newly favorable evidence constituted good cause for defense
counsel’s “conscious decision” to forego filing a suppression motion before the deadline
set by the court. /d. at 223. The Court reasoned that “defense counsel possessed full
knowledge of the basis for making the motion when he made his decision but chose not
to present it based on his assessment of its likelihood of success...[p]Jut another way, he
made a strategic decision not to advance the [djefendant’s motion, and now regrets not
doing so because he is more confident in his chances than he was at the time.” /d.
Likewise here, defense counsel possessed full knowledge of the critical facts necessary

to make a timely motion to suppress the phone evidence. Moreover, counsel had ample

10 Therein, this Court concluded that the search of Bongiovanni’s phone violated the Fourth
Amendment, but that the good faith doctrine prevented the suppression of the evidence. Gerace
now seems to argue that the factual differences between the border search of his phone and the
border search of Bongiovanni’s phone would prevent the good faith doctrine from applying to
him.

11

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time, after learning about the warrantless search of Gerace’s phone, to investigate the
specific circumstances of the border search and to review any relevant legal precedent
regarding the constitutionality of such a search. When filing defendant's other, timely
pretrial motions, counsel seems to have made a strategic or purposeful decision not to
move to suppress evidence from the border search of Gerace’s phone. Now, as a result
of this Court's factual and legal determinations regarding the border search of
Bongiovanni’s phone, counsel believes that a suppression motion as to the border search
of his phone has a greater likelihood of success. However, Gerace is not entitled to a
second bite at the apple on this basis, since the “law is clear that strategic decisions of
counsel cannot establish good cause under Rule 12(c)(3).” Yousef, 327 F.3d at 124-25.
The instant proposed suppression motion is over a year and three months late.
Critically, the record proves that defendant and his counsel possessed the necessary
information to raise this issue, at the /atest, three months before the motion deadline.
None of the reasons cited by defendant constitute good cause to excuse this very
untimely filing. Scheduling orders in criminal cases serve an important purpose with
respect to protecting both defendants’ and the public’s interest in speedy trials. Indeed,
to excuse defendant's failure to timely raise this issue would only risk “caus[ing] further
delay in this case, which would undermine the public’s interest in a speedy trial.” United
States v. Lewis, 17-CR-28, 2018 U.S. Dist. LEXIS 111471, at *4 (W.D.N_.Y. Feb. 1, 2018).
Moreover, the Court has an independent obligation to ensure that pretrial proceedings
occur without unnecessary delay, and therefore the Court must be able to require
compliance with its scheduling orders in criminal cases. "{[S]ince courts have a legitimate

interest in the enforcement of scheduling deadlines in order to manage pending cases

12

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and to retain the credibility of deadlines in future cases, it is not an abuse of discretion for
a district court to adhere to published deadlines.” Billings, 2015 U.S. Dist. LEXIS 176160,
*2 (internal citations and quotations omitted).

CONCLUSION

For the foregoing reasons, it is recommended that defendant Peter Gerace’s
request for leave to file an untimely suppression motion be denied and that the
suppression issues raised therein be deemed waived. (Dkt. No. 316)

Pursuant to 28 U.S.C. §636(b)(1), it is hereby ordered that this Report,
Recommendation and Order be filed with the Clerk of Court.

Unless otherwise ordered by Judge Sinatra, any objections to the recommendation
portion of this Report, Recommendation and Order must be filed with the Clerk of Court
within fourteen days of service of this Report and Recommendation in accordance with
the above statute, Rules 59(b), 45(a), and 45(c) of the Federal Rules of Criminal
Procedure, and Local Rule of Criminal Procedure 59. Any requests for an extension of
this deadline must be made to Judge Sinatra.

Failure to file objections, or to request an extension of time to file objections,
within fourteen days of service of this Report, Recommendation and Order WAIVES
THE RIGHT TO APPEAL THE DISTRICT COURT’S ORDER. See Small v. Sec’y of
Health & Human Servs., 892 F.2d 15 (2d Cir. 1989).

The District Court will ordinarily refuse to consider de novo arguments, case law
and/or evidentiary material which could have been, but were not, presented to the
Magistrate Judge in the first instance. Pursuant to Local Rule of Criminal Procedure

59(c)(2), written objections “shall specifically identify the portions of the proposed findings

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and recommendations to which objection is made and the basis for each objection, and
shall be supported by legal authority.” Failure to comply with these provisions may

result in the District Court’s refusal to consider the objection.

SO ORDERED.

Dated: December 19, 2022
Buffalo, New York

.

w

MICHAEL J. ROEMER
United States Magistrate Judge

14