USA v. Bongiovanni, et al.

OCR transcription for search; preserved printed pages are authoritative

Case 1:19-cr-00227-LJV-MJR Document 368 _ Filed 02/06/23. Page1of4

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK

UNITED STATES OF AMERICA,
Vv. 19-CR-227 (JLS) (MJR)
PETER GERACE, JR.,

Defendant.

DECISION AND ORDER

Defendant Peter Gerace, Jr. is charged in the eighteen-count second
superseding indictment with offenses related to defrauding the United States,
bribery, distributing controlled substances, obstruction of justice, and sex
trafficking. Dkt. 89. Trial is set to commence for Gerace and his co-defendant,
Joseph Bongiovanni, on June 21, 2023.!

Gerace filed numerous pre-trial motions—including a motion to suppress
evidence seized from his home, business, and cell phone, based on the purported
untrustworthiness of the warrant—on July 12, 2021, consistent with the operative
scheduling order. Dkt. 147; see also Dkt. 142. United States Magistrate Judge
Michael J. Roemer, who was designated to hear and determine, and report and
recommend on, all pre-trial proceedings under 28 U.S.C. §§ 636(b)(1)(A) and (B),
issued a Report, Recommendation, and Order on Gerace’s motions on August 5,

2022. Dkt. 92; Dkt. 291.

1 Both Gerace and Bongiovanni have severance motions pending with this Court.

AUTHENTICATED
U.S. GOVERNMENT
INFORMATION

GPO

Case 1:19-cr-00227-LJV-MJR Document 368 _ Filed 02/06/23. Page 2 of 4

While objections to that Report, Recommendation, and Order were pending
with this Court?—and after this Court had set an oral argument date on those
objections—on October 28, 2022, Gerace asked Judge Roemer for permission to file
an oversized brief in support of a new suppression motion. Dkt. 311. Judge Roemer
directed Gerace to show cause why this proposed suppression motion would be
timely. Dkt. 312. After receiving briefing from the parties, Judge Roemer issued a
Report and Recommendation (“R&R”) on December 19, 2022, recommending that
this Court deny Gerace leave to file an untimely suppression motion and deem the
proposed suppression issue waived. Dkt. 330.

Gerace objected to the R&R, arguing that the R&R erred by: (1) concluding
that his proposed suppression motion is untimely because scheduling order
deadlines may not violate due process; and (2) failing to consider all his proffered
reasons to find that good cause exists to file a late suppression motion. Dkt. 341.
The Government opposed Gerace’s objections, and Gerace filed a reply in further
support. Dkt. 353; Dkt. 364.

A district court may accept, reject, or modify the findings or recommendations
of a magistrate judge. 28 U.S.C. § 636(b)(1); Fed. R. Crim. P. 59(b)(3). A district
court must review de novo those portions of a magistrate judge’s recommendation to
which a party objects. 28 U.S.C. § 636(b)(1); 28 U.S.C. § 686(b)(1); Fed. R. Crim.

P. 59(b)(8).

2 This Court ultimately resolved Gerace’s pre-trial motions on November 22, 2022.
Dkt. 319.

Case 1:19-cr-00227-LJV-MJR Document 368 Filed 02/06/23. Page 3 of 4

This Court carefully reviewed Judge Roemer’s recommendations to deny
Gerace leave to file a late suppression motion and to deem the suppression issues
raised in the proposed motion waived, as well as the relevant record. Gerace does
not identify a reason to disturb Judge Roemer’s analysis on these facts, especially
considering the Second Circuit cases that affirmed similar outcomes. See, e.g.,
United States v. Moore, 541 F. App’x 37, 39 (2d Cir. 20138) (affirming district court’s
“decision not to entertain” suppression motion filed eight months after the court’s
deadline but before trial, citing Federal Rule of Criminal Procedure 12); United
States v. Kopp, 562 F.3d 141, 143 (2d Cir. 2009) (citing Rule 12, and stating that “[a]
party waives its ability to move to suppress evidence if it fails to do so by the pre-
trial deadline set by the court, except that the district court may grant relief from
that waiver ‘[flor good cause”’); United States v. Howard, 998 F.2d 42, 51-52 (2d Cir.
1998) (affirming district court’s denial of leave to file late suppression motion under
Rule 12, where defendant sought leave thirty-nine days after the pre-trial motions
deadline and did not demonstrate good cause).

Gerace’s due process argument does not change the analysis. As another
court has recognized, albeit in a different context: “The mandatory waiver provided
for in Rule 12[]... applies whatever may be the claimed basis for the application of
the exclusionary rule, including claims that evidence was obtained as a result of an
illegal search and seizure under the Fourth Amendment.” See United States v.
Michalek, 819 F. Supp. 250, 261 (W.D.N.Y. 1993), aff'd, 9 F.3d 1536 (2d Cir. 1998).

Even such “fundamental constitutional rights” as the “Fourth Amendment right to

Case 1:19-cr-00227-LJV-MJR Document 368 _ Filed 02/06/23. Page 4 of 4

be free from unreasonable searches and seizures” are “waived by reason of a
defendant’s failure to raise them within the time frame established by the trial
court.” Id. at 262. Upon its de novo review, therefore, the Court accepts and adopts
Judge Roemer’s recommendation to deny Gerace leave to file a late suppression
motion.

For the reasons above and in the R&R, the Court accepts and adopts Judge
Roemer’s R&R (Dkt. 330) and denies Gerace’s motion for leave to file a late
suppression motion (Dkt. 3816). Further proceedings shall continue according to this

Court’s pretrial order (Dkt. 325).

SO ORDERED.

Dated: February 6, 2023
Buffalo, New York

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He. ge
JOHNE. SINATRA, JR.
UNITED STATES DISTRICT JUDGE