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
On April 12, 2024, the defendant, Joseph Bongiovanni, was convicted following a
jury trial on one count of obstructing justice in violation of 18 U.S.C. § 1519 (count 13)
and one count of making false statements to an agency of the United States in violation
of 18 U.S.C. § 1001(a)(2) (count 15). Docket Item 880. Bongiovanni was acquitted on
another count of obstructing justice (count 12), id., and this Court declared a mistrial on
the other 12 counts, see Docket Item 867. The Court later granted a judgment of
acquittal on one count of accepting a bribe as a public official in violation of 18 U.S.C.
§ 201(b)(2) (count 5). Docket Item 1077. The remaining 11 counts were retried
beginning in July 2024. See Docket Items 1095 and 1193.
Following the second trial, the jury convicted Bongiovanni on one count of
conspiring to defraud the United States in violation of 18 U.S.C. § 371 (count 1); one
count of conspiring to possess with intent to distribute and to distribute controlled
substances, including less than 50 kilograms of marijuana, in violation of 21 U.S.C.
§ 846 (count 3); four counts of obstructing justice in violation of 18 U.S.C. § 1519
(counts 6-8 and 10); and one count of making false statements to an agency of the
United States in violation of 18 U.S.C. § 1001(a)(2) (count 11). Docket Item 1285. The
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jury acquitted Bongiovanni on a second count of conspiring to defraud the United States
in violation of 18 U.S.C. § 371 (count 2); one count of accepting a bribe as a public
official in violation of 18 U.S.C. § 201(b)(2)(c) (count 4); a second count of conspiring to
possess with intent to distribute and to distribute controlled substances in violation of 21
U.S.C. § 846 (count 5); and another count of obstructing justice in violation of 18 U.S.C.
§ 1519 (count 9). Docket Item 1285. The conspiracy acquittals involved an alleged
agreement to protect Peter Gerace, Jr., a codefendant whose trial had been severed
from Bongiovanni’s. See Docket Item 1193 at 17-26, 28.1
On April 25, 2025, the United States Probation Office filed a Presentence
Investigation Report (“PSR”) calculating Bongiovanni’s United States Sentencing
Guidelines (“U.S.S.G.” or “Guidelines”) range. Docket Item 1503. Both Bongiovanni
and the government objected to the PSR. Docket Items 1566 and 1567. More
specifically, Bongiovanni contends that: (1) the calculation of the drug weight on count 3
should be “at most . . . 10-20 pounds of marijuana,” Docket Item 1567 at 38; (2) the
counts should be divided into two rather than three groups, id. at 34-38; (3) the two-level
firearm enhancement should not be applied, id. at 38-39; and (4) the two-level abuse of
public trust enhancement should not be applied to the Gerace-related counts, id. at 41-
42. The government disagrees with Bongiovanni’s arguments and also contends that
the three-level manager enhancement should be applied.2 Docket Item 1566 at 4-7.
1 Page numbers in docket citations refer to ECF pagination.
2 In addition, both parties objected to the PSR’s inclusion of numerous specific
facts. See generally Docket Items 1566 and 1567. As the Court explained at oral
argument, it will not rule on each of these objections individually, as it is not the Court’s
role to rewrite the PSR. See United States v. Reiss, 186 F.3d 149, 156-57 (2d Cir.
1999) (explaining that district court is not required to “perform a line-by-line review of the
PSR”). That being said, the revised PSR should make clear that any “facts” involving
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This Court heard oral argument on both sides’ objections and reserved decision. See
Docket Item 1588.
For the reasons that follow, this Court sustains in part and overrules in part
Bongiovanni’s objections to the PSR, Docket Item 1567, and overrules the
government’s objection to the PSR, Docket Item 1566. More specifically, the Court
finds that (1) the counts should be divided into two rather than three groups, (2)
Bongiovanni’s relevant conduct involves at least 400 kilograms but less than 700
kilograms of converted drug weight, (3) the firearm enhancement was properly applied,
(4) the abuse of public trust enhancement was properly applied as to the group of
counts related to Gerace, and (5) the PSR properly declined to apply the manager
aggravating-role enhancement. The United States Probation Office shall revise the
PSR accordingly by October 31, 2025.
DISCUSSION3
I. 	LEGAL PRINCIPLES
A. 	Sentencing Guidelines Calculation
The now-advisory Guidelines, see United States v. Booker, 543 U.S. 220 (2005),
are the requisite starting point for a district court’s determination of a sentence. See
Rita v. United States, 551 U.S. 338, 350 (2007). Under the Guidelines, a defendant’s
sentencing range is calculated using a base offense level; any adjustments to that level
conduct on which Bongiovanni was acquitted are the government’s allegations, not
proven conduct.
3 The Court assumes the reader’s familiarity with the factual background and will
recount only those facts necessary to explain its opinion.
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based on specific offense characteristics, the defendant’s role in the offense, and
whether the defendant accepted responsibility for the offense; and the defendant’s
criminal history category. See U.S.S.G. § 1B1.1(a).
B. 	Relevant Conduct and Drug Weight
The base offense level for violating the underlying statute charged in count 3—21
U.S.C. § 841(a)(1)—is driven by the drugs involved and their weight. See U.S.S.G.
§ 2D1.1(c). The relevant weight is not limited to that of the drugs for which the
defendant was convicted, however, and can include the weight of all drugs connected to
the defendant’s relevant conduct. See United States v. Madkour, 930 F.2d 234, 237 (2d
Cir. 1991); see also Booker, 543 U.S. at 233-35.
“[I]n the case of a jointly undertaken criminal activity (a criminal plan, scheme,
endeavor, or enterprise undertaken by the defendant in concert with others, whether or
not charged as a conspiracy),” relevant conduct includes:
all acts and omissions of others that were—
(i) within the scope of the jointly undertaken criminal
activity,
(ii) in furtherance of that criminal activity, and
(iii) reasonably foreseeable in connection with that
criminal activity[]
that 	occurred 	during the 	commission 	of 	the 	offense of
conviction, in preparation for that offense, or in the course of
attempting to avoid detection or responsibility for that offense.
U.S.S.G. § 1B1.3(a)(1)(B); see also United States v. Molina, 106 F.3d 1118, 1121 (2d
Cir. 1997) (“Under the relevant conduct principles of subsection 1B1.3(a)(1)(B), all
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‘reasonably foreseeable acts and omissions of others’ in furtherance of the conspiracy
may be taken into account to determine a defendant’s sentence.”).
Thus, to determine relevant conduct with respect to jointly undertaken criminal
activity, “the district court must make two particularized findings.” United States v.
Mulder, 273 F.3d 91, 118 (2d Cir. 2001). “First, it must determine ‘the scope of the
criminal activity agreed upon by the defendant.’” Id. (quoting United States v. Studley,
47 F.3d 569, 574 (2d Cir. 1995)). “Second—and only if it finds that the scope of the
activity to which the defendant agreed was sufficiently broad to include the conduct in
question—the court ‘must make a particularized finding as to whether the activity was
foreseeable to the defendant.’” Id. (quoting Studley, 47 F.3d at 574). With respect to
drug quantity, “[t]he defendant need not have actual knowledge of the exact quantity of
narcotics involved in the entire conspiracy; rather, it is sufficient if he could reasonably
have foreseen the quantity involved.” United States v. Snow, 462 F.3d 55, 72 (2d Cir.
2006).
The Guidelines also provide that “solely with respect to offenses of a character
for which [section] 3D1.2(d) would require grouping of multiple counts,” relevant conduct
includes “all acts and omissions described in subdivisions (1)(A) and (1)(B) above that
were part of the same course of conduct or common scheme or plan as the offense of
conviction.” U.S.S.G. § 1B1.3(a)(2). And the Guidelines state that “[r]elevant conduct
does not include conduct for which the defendant was criminally charged and acquitted
in federal court, unless such conduct also establishes, in whole or in part, the instant
offense of conviction.” Id. § 1B1.3(c).
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C. 	Evidentiary Standards in Sentencing
Even though a defendant is adjudged guilty by the time of sentencing, the
defendant’s due process rights are not checked at the courtroom door. See United
States v. Pugliese, 805 F.2d 1117, 1122 (2d Cir. 1986). On the contrary, the sentencing
court must balance the defendant’s procedural rights against the defendant’s guilt and
the need to impose a fair punishment. See id.
Under Federal Rule of Criminal Procedure 32, prior to sentencing a court must
“rule on [any] dispute [regarding the PSR] or determine that a ruling is unnecessary
either because the matter will not affect sentencing[] or because the court will not
consider the matter in sentencing.” Fed. R. Crim. P. 32(i)(3)(B). A court is not required
to “perform a line-by-line review of the PSR,” however, as long as it “resolve[s] the
substantive challenges” to it. United States v. Reiss, 186 F.3d 149, 156-57 (2d Cir.
1999).
A sentencing court has broad discretion in deciding what information to consider:
So long as the defendant is afforded an opportunity to respond and information has
some indicia of reliability to ensure that it is likely accurate, such information is fair
game, and the formal rules of evidence do not apply. United States v. Concepcion, 983
F.2d 369, 387-88 (2d Cir. 1992); U.S.S.G. § 6A1.3(a) (“In resolving any dispute
concerning a factor important to the sentencing determination, the court may consider
relevant information without regard to its admissibility under the rules of evidence
applicable at trial, provided that the information has sufficient indicia of reliability to
support its probable accuracy.”). By the same token, “[u]nreliable allegations shall not
be considered” by the sentencing court. U.S.S.G. § 6A1.3 cmt. And if the reliability of
certain information is challenged, corroborating evidence can help the court determine
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whether the information is, in fact, reliable. United States v. Romano, 825 F.2d 725,
728-29 (2d Cir. 1987); United States v. Fatico, 579 F.2d 707, 713 (2d Cir. 1978).
At a trial, the government must prove a defendant’s guilt beyond a reasonable
doubt; at a sentencing hearing, on the other hand, the government must prove the
relevant facts only by a preponderance of the evidence. See United States v. Salazar,
489 F.3d 555, 557 (2d Cir. 2007) (per curiam). Drug weight, like any other sentencing
factor, is determined by a preponderance of the evidence. See United States v.
Cordoba-Murgas, 233 F.3d 704, 708 (2d Cir. 2000).
II. 	THE PSR’S CALCULATIONS
The PSR divided the counts on which Bongiovanni was convicted into three
groups. The first group included counts 1 and 3, which the PSR “grouped for
[G]uideline calculation purposes because they involve[d] the same victim and two or
more acts or transactions connected by a common criminal objective or constituting part
of a common scheme or plan.” Docket Item 1503 at ¶ 84 (citing U.S.S.G. § 3D1.2(b)).
More specifically, the PSR explained, “these counts are connected by the common
criminal objective or constituting part of a common scheme or plan, namely, to facilitate
the continued drug trafficking activities related to the [Serio Drug Trafficking
Organization (‘DTO’)].” Id. The second group included counts 6, 7, 11, and 13. Id. at
¶ 85. The PSR grouped those counts because they were “connected by the common
criminal objective or constituting part of a common scheme or plan to obstruct the
investigation into the drug trafficking activities related to the [Serio] DTO.” Id. Finally,
the third group included counts 8, 10, and 15, which the PSR grouped because they
were “connected by the common criminal objective or constituting part of a common
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scheme or plan to obstruct the investigation into the drug trafficking activities related to
Peter Gerace[,] Jr., a closely related investigation.” Id. at ¶ 87.
For group 1, the PSR found that Bongiovanni’s relevant conduct “involved the
converted drug weight of at least 10,000 to 30,000 kilograms,” for a base offense level
of 34. Id. at ¶ 89. The PSR then added three two-level enhancements: possession of a
firearm, id. at ¶ 90; abuse of public trust, id. at ¶ 92; and obstruction of justice, id. at
¶ 93, resulting in a base offense level of 40, id. at ¶ 94.
The PSR “grouped together” groups 1 and 2 “for [G]uideline calculation purposes
because [group 2] embodies conduct that is treated as a specific offense characteristic
in, or other adjustment to” the counts in group 1 “(namely, Obstructing or Impeding the
Administration of Justice” under U.S.S.G. § 3C1.1).” Id. at ¶ 86. The PSR then
explained that “the offense level applicable to a group is the offense level[] . . . for the
most serious of the counts comprising the [g]roup”—here, count 3. Id. So the PSR
found a base offense level of 40 for groups 1 and 2 combined. See id. at ¶¶ 86, 88-94.
For group 3, the PSR started with a base offense level of 14 under U.S.S.G.
§ 2J1.2. Docket Item 1503 at ¶ 95. The PSR then added a three-level enhancement
for “substantial interference with the administration of justice” and a two-level
enhancement for abuse of public trust, for a total offense level of 19. Id. at ¶¶ 96-100.
The PSR explained that under U.S.S.G. § 3D1.4, the greater offense level of the
two groups applies and, because the total offense level for group 3 was “9 or more
levels less serious,” it is disregarded. Docket Item 1503 at ¶ 101. The PSR then
subtracted two levels for a total offense level of 38 because Bongiovanni meets the
criteria at U.S.S.G. § 4C1.1(a)(1)-(11) for a zero-point offender. Docket Item 1503 at
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¶ 105. Ultimately, the PSR calculated a Guidelines range of 235 months to 293 months
based on an offense level of 38 and a criminal history category of I. Id. at ¶ 117.
III. 	BONGIOVANNI’S OBJECTIONS
A. 	Drug Weight
Count 3 charged that Bongiovanni conspired “to possess with intent to distribute,
and to distribute, 1000 kilograms or more of a mixture and substance containing
marijuana . . . and cocaine.” Docket Item 1193 at 26. The jury convicted Bongiovanni
on count 3 but determined that “less than 50 kilograms” of marijuana “was reasonably
foreseeable to [him] as being within the scope of the agreement.” Docket Item 1285 at
4. The jury was not asked to determine whether—and, if so, how much—cocaine was
involved in the conspiracy. See id.
Count 3 charged Bongiovanni with a drug conspiracy involving what the
government called the Serio DTO. See, e.g., Docket Item 1578 at 21-23. Based on the
trial testimony of Ron Serio, a principal in that organization, the PSR calculated that “at
least 10,000 kilograms but less than 30,000 kilograms of converted drug weight is the
amount involved in [Bongiovanni]’s relevant conduct.” Docket Item 1503 at ¶ 59. More
specifically, the PSR found that Bongiovanni’s relevant conduct included 5,120 grams of
fentanyl (12,800 kilograms of converted drug weight), 10,000 pounds of marijuana
(4,536 kilograms of converted drug weight), and five kilograms of cocaine (1,000
kilograms of converted drug weight). Id.
Bongiovanni objects, arguing, among other things, that the PSR’s determination
violates the acquitted conduct rule. Based on the jury’s verdict, Bongiovanni says, his
relevant conduct includes “at most, what [his friend] Lou Selva testified . . . was growing
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in [Selva’s] basement,” which “included 40-50 plants that yielded 10-20 pounds of
marijuana.” Docket Item 1567 at 30. “10-20 pounds of marijuana converts to 4.5-9
kilograms of marijuana,” Bongiovanni explains, which would result in “a base offense
level of 12 (if the Court credits Selva’s testimony that the grow yielded 12 pounds/5.4
kilograms or more of marijuana) or [a] base offense level of 10 (if the Court credits
Selva’s testimony that the grow yielded 10-11 pounds/4.5-4.9 kilograms of marijuana).”
Id. The government responds that the PSR correctly calculated the drug weight. See
Docket Item 1578 at 16-30.
As the Second Circuit has explained, “the scope of conduct for which a
defendant can be held accountable under the [Guidelines] is significantly narrower than
the conduct embraced by the law of conspiracy.” United States v. Rigo, 649 F. App’x
107, 108 (2d Cir. 2016) (summary order) (quoting United States v. Perrone, 936 F.2d
1403, 1416 (2d Cir. 1991)). “This is because ‘the emphasis in substantive conspiracy
liability is the scope of the entire conspiracy,’ while ‘the emphasis under [the Guidelines]
is the scope of the individual defendant’s undertaking.’” Id. (quoting United States v.
Spotted Elk, 548 F.3d 641, 673-74 (8th Cir. 2008)). “As the commentary to the relevant
section of the Guidelines explains, ‘the accountability of the defendant for the acts of
others is limited by the scope of his or her agreement to jointly undertake the particular
criminal activity. Acts of others that were not within the scope of the defendant’s
agreement, even if those acts were known or reasonably foreseeable to the defendant,
are not relevant conduct’ for sentencing purposes.” Id. (quoting U.S.S.G. § 1B1.3 cmt.
n.3(B)). By the same token, acts that were within the scope of the agreement but not
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reasonably foreseeable to the defendant also may not be included as relevant conduct.
See U.S.S.G. § 1B1.3.
1. 	The Scope of Activity that Bongiovanni Jointly Undertook
As explained above, the Court first must determine whether “the scope of the
activity to which the defendant agreed was sufficiently broad to include the conduct in
question.” See Mulder, 273 F.3d at 118 (citing Studley, 47 F.3d at 574). “[T]hat the
defendant is aware of the scope of the overall operation is not enough to hold him
accountable for the activities of the whole operation.” Studley, 47 F.3d at 575. Rather,
“[t]he relevant inquiry is what role the defendant agreed to play in the operation, either
by an explicit agreement or implicitly by his conduct.” Id.
As the government observes, there was testimony from Selva and Serio, as well
as admissions in the plea agreement of Michael Masecchia and exhibits presented at
trial, suggesting that Bongiovanni “explicitly and implicitly through his conduct, [agreed]
corruptly to protect the [Serio] DTO in a variety of ways,” including:
• 	“protect[ing] the DTO against informants”;
• 	“misle[ading] members of law enforcement, including the Amherst Police
Department, DEA, and the United States Attorney’s Office”;
• 	“sign[ing] Robert Kaiser up as [Bongiovanni]’s DEA confidential
source[ (‘CS’)] and then promptly expos[ing] Kaiser’s status as a [CS] to
Selva, who passed that critical information along to the DTO’s principal
members—Masecchia and Serio”;
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• 	“after exposing Kaiser’s identity as a CS to the DTO, ensur[ing] that Kaiser
provided no cooperation against the Serio DTO and promptly us[ing] Kaiser to
investigate an individual unconnected to the Serio DTO”;
• 	“after using Kaiser to investigate another individual, prematurely clos[ing]
Kaiser as a CS and forg[ing] DEA Special Agent Mark Gentile’s name on the
CS deactivation form”;
• 	“continu[ing] to mislead other members of the DEA (such as David Leary,
Shane Nastoff, Dave Turri, and the supervisor who signed off on false
reports—John Flickinger), into believing [that Bongiovanni] had a CS active in
the case when he did not”;
• 	“creating a sham file (C2-13-0026) purporting to investigate Wayne
Anderson[] and the Serio DTO” after Anderson “was arrested during a
controlled delivery involving 200 pounds of marijuana intended for the DTO”;
• 	“using the sham file that he opened (C2-13-0026) [to] create[] a myriad [of]
false and misleading DEA reports”;
• 	“continually misle[ading] co-workers and misus[ing] DEA databases (such as
the DARTS database) to set up deconflictions to alert [Bongiovanni] if
members of the conspiracy were under investigation by other members of the
DEA or federal law enforcement”;
• 	“us[ing] the DEA DARTS deconflictions that [Bongiovanni] caused to be set
up to confirm for the DTO that no DTO members—including principal
members Ron Serio and Michael Masecchia—were captured on law
enforcement wiretaps”;
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• 	Providing “general advice” on avoiding law enforcement detection to Selva,
“which Selva frequently passed along to the DTO”;
• 	providing “specific information” to the DTO, including: disclosing “the identities
of three DEA CSs (including Kaiser); confirm[ing] that no members of law
enforcement were tracking tractor trailer trucks from California and British
Columbia intended for Buffalo; advis[ing] Selva about GPS trackers and their
[contemplated] use in the investigation . . . ; advising Selva that a member of
the DTO, Mario Vacanti, was under investigation[;] and[] informing Selva
when investigation into the DTO was closed”;
• 	coaching “Selva to lie to conceal the criminal activity” and “personally
ma[king] a myriad of false statements to conceal the conspiracies and his
involvement in them.”
See Docket Item 1578 at 21-23.4
Bongiovanni argues, as he did in support of his Rule 29 motion, that the jury’s
drug-weight finding on count 3 demonstrates that his role in the conspiracy was limited
to protecting Selva’s basement grow. But as this Court recently found in denying
Bongiovanni’s Rule 29 motion, “the only thing the Court can glean from the jury’s verdict
is that the government failed to prove that more than 50 kilograms of marijuana was
reasonably foreseeable to Bongiovanni as part of the conspiracy.” United States v.
4 The government’s brief also recounts trial testimony about bribes that
Bongiovanni was given in exchange for this protection. See Docket Item 1578 at 17-20.
But the jury acquitted Bongiovanni of accepting bribes, and the Court therefore will not
consider the evidence of bribery in analyzing Bongiovanni’s relevant conduct. See
U.S.S.G. § 1B1.3(c).
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Bongiovanni, 2025 WL 2462445, at *4 (W.D.N.Y. Aug. 27, 2025). And “that does not,
as Bongiovanni claims, permit the inference that the jury found only that he protected
Selva’s small grow operation or that the government’s proof on Bongiovanni's
involvement in the Serio DTO conspiracy was lacking.” See id.
On the contrary, there was ample evidence at trial suggesting that Bongiovanni
was aware of more than just Selva’s basement grow. As the government observes,
Selva testified that he had “specifically advised [Bongiovanni] that the drug trafficking
involved outdoor marijuana grow operations in the Southern Tier; indoor marijuana grow
operations at Selva’s residence; trips to New York City by Serio and Masecchia to
procure marijuana; and tractor trailer truckloads of marijuana traveling across the
country from California and internationally from British Columbia, Canada.” Docket Item
1578 at 24. What is more, Bongiovanni completed a DEA-6 form in which he reported
that Kaiser had told him that Serio and Serio’s brother, Thomas, were “known to [Kaiser]
as leaders of a large drug trafficking organization capable of trafficking multi-kilogram
quantities of cocaine and [h]undreds of pounds of marijuana in Buffalo.” See id. at 25-
26. Additionally, the 2012 New York State Police (“NYSP”) “arrest of Wayne Anderson,
a member of the [Serio] DTO . . . , involved 200 pounds of marijuana.” Id. at 24; see
Docket Item 1487 at 19. And following that arrest, there was evidence that Bongiovanni
“misle[d] the NYSP into relinquishing the . . . Anderson investigation to [Bongiovanni].”
Docket Item 1578 at 24-25.
Based on all that, this Court finds by a preponderance of the evidence that “the
scope of the activity to which [Bongiovanni] agreed was sufficiently broad to include” the
actions of the Serio DTO. See Mulder, 273 F.3d at 118 (citing Studley, 47 F.3d at 574).
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But that does not end the inquiry. The drug weight for which Bongiovanni was
responsible still must be reasonably foreseeable to him. In other words, although this
Court finds that Bongiovanni agreed to protect the Serio DTO in a wide-ranging manner
such that he jointly undertook the full scope of the actions taken in furtherance of the
conspiracy, that does not mean that he could reasonably foresee all its actions. See
U.S.S.G. § 1B1.3(a)(1)(B).
2. 	The Amount of Drugs Reasonably Foreseeable to Bongiovanni
The question, then, is how much of the Serio DTO’s drug trafficking activity was
reasonably foreseeable to Bongiovanni. As explained above, the government contends,
and the PSR found, that Bongiovanni should be held responsible for all the drugs that
the Serio DTO distributed. Bongiovanni, by contrast, contends that he is responsible
only for Selva’s basement grow. For the reasons that follow, the Court finds that the
correct amount is somewhere between the two extremes.
a. 	Marijuana
First, the Court agrees with Bongiovanni that under the acquitted conduct rule, it
cannot attribute more marijuana to him than the jury found.5 See U.S.S.G. § 1B1.3(c).
So the marijuana that can be included in Bongiovanni’s relevant conduct is no more
5 As the government observes, the Guidelines provide that in “cases in which
certain conduct underlies both an acquitted charge and the instant offense of conviction
. . . , the [district] court is in the best position to determine whether such overlapping
conduct establishes, in whole or in part, the instant offense of conviction and therefore
qualifies as relevant conduct.” See U.S.S.G. § 1B1.3 cmt. n.10. Here, however, the
jury clearly acquitted Bongiovanni of the specific conduct of conspiring to distribute
more than 50 kilograms of marijuana, and this Court sees no reason to find that such
conduct “establishes, in whole or in part” the conspiracy to defraud on which
Bongiovanni also was convicted. See id. § 1B1.3(c).
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than 49.9 kilograms. Based on the evidence described above, including Anderson’s
arrest with 200 pounds (over 90 kilograms) of marijuana, see supra Section II.A.1, and
mindful of the preponderance of the evidence standard, the Court finds that the full
amount of marijuana permissible under the jury’s verdict—49.9 kilograms—was
foreseeable to Bongiovanni as being part of the conspiracy.
b. 	Cocaine
The Court agrees with the government, however, that marijuana is not the only
drug reasonably foreseeable to Bongiovanni as part of the conspiracy. Count 3 charged
that Bongiovanni conspired “to possess with intent to distribute, and to distribute, 1000
kilograms or more of a mixture and substance containing marijuana . . . and cocaine.”
Docket Item 1193 at 26 (emphasis added). The jury was not asked to determine how
much cocaine was reasonably foreseeable to Bongiovanni as part of the conspiracy,
so—unlike the marijuana—there is no amount of cocaine that would run afoul of the
acquitted conduct rule. Therefore, the question is this: what amount of cocaine, if any,
was reasonably foreseeable to Bongiovanni as part of the conspiracy for which he was
convicted. And the Court makes that determination by a preponderance of the
evidence. See Cordoba-Murgas, 233 F.3d at 708.
As explained above, Serio testified that he had “distributed at least 5 kilograms of
cocaine (1,000 kilograms of converted drug weight),” and the PSR therefore attributed
that amount to Bongiovanni as relevant conduct. See Docket Item 1503 at 18. But just
because Serio testified as to what he distributed does not necessarily mean that the full
amount should be included in Bongiovanni’s relevant conduct. Before adding that in,
the Court must have some evidence that Bongiovanni knew about or could reasonably
have foreseen that amount. See Studley, 47 F.3d at 574.
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The evidence demonstrates that Bongiovanni knew that the Serio DTO was
seeking customers “for multiple kilograms of cocaine.” See Docket Item 1578 at 25-26;
see also id. (Bongiovanni’s stating in DEA-6 that Kaiser told him that Serio and his
brother were “known to [Kaiser] as leaders of a large drug trafficking organization
capable of trafficking multi-kilogram quantities of cocaine”). From this, the Court finds
that Bongiovanni could reasonably foresee at least 2 kilograms of cocaine as being part
of the conspiracy. And, although a closer call, the Court finds that there is not sufficient
evidence to find that more than 2 kilograms was foreseeable.
It is true, as the government observes, that the DEA-6 report also noted that
Robert Mettal—another member of the Serio DTO—“was arrested in a New York State
cocaine investigation along with Thomas Serio in 1998 with approximately 5 kilograms
of cocaine.” Id. at 26-27 (some capitalization omitted). But Mettal’s and 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. See Docket Item 1193 at 26 (charging Serio DTO conspiracy beginning in
2008). Indeed, the Second Circuit has cautioned against using the past acts of a
conspirator as a basis for finding reasonable foreseeability. Cf. Mulder, 273 F.3d at
119-20 (finding that “district court’s original basis for finding foreseeability—the use of
violence by coalition members in other circumstances—was inadequate” and ordering
that “[o]n remand, the district court may not find that [a] murder was foreseeable to [the
defendants] solely because [coalition] members committed other violent acts”).
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Thus, the Court finds that Bongiovanni’s relevant conduct includes 2 kilograms of
cocaine as part of the conspiracy charged in count 3.
c. 	Fentanyl
As noted above, the PSR also included “5,120 grams (12,800 kilograms of
converted drug weight)” of fentanyl based on Ron Serio’s testimony that he “had four
large shipments of counterfeit pills containing fentanyl, with 4,000 pills per shipment, for
a total of 16,000 pills.” See Docket Item 1503 at ¶ 49. But there is a dearth of evidence
demonstrating that Bongiovanni could reasonably foresee—let alone that he knew—that
Serio also was trafficking fentanyl pills.
Indeed, the government does not even attempt to argue that Bongiovanni knew
or could reasonably foresee the fentanyl pills. See Docket Item 1578 at 29 (arguing that
“[t]he evidence firmly establishes that cocaine and marijuana were not only reasonably
foreseeable to the defendant—but were directly known by the defendant to be
controlled substances trafficked by the DTO that he was protecting” (emphasis added)).
Instead, the government says that “even if the Court does not find [the fentanyl pills] to
be relevant conduct under [section] 1B1.3(a)(1)(B), they are nevertheless countable as
relevant conduct under [section] 1B1.3(a)(2), which requires the court to consider ‘all
acts and omissions . . . that were part of the same course of conduct or common
scheme or plan as the offense of conviction.’” Docket Item 1578 at 29. More
specifically, the government contends that “[t]he evidence established that all shipments
of fentanyl pills were mixed in with the large shipments of marijuana that were
unquestionably established to be[—by] at least a preponderance of the evidence—
under [Bongiovanni]’s protection.” Id. And the government suggests that “the fentanyl
pills are relevant conduct because they were part of the same course of conduct
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because they were substantially connected and were part of ongoing series of offenses
that included the other controlled substances the defendant was directly aware the DTO
was distributing (cocaine and marijuana) with his protection.” Id. at 30.
Under section 1B1.3(a)(1), relevant conduct must either be acts or omissions that
the defendant “committed, aided, abetted, counseled, commanded, induced, procured,
or willfully caused,” U.S.S.G. § 1B1.3(a)(1)(A), or it must meet the criteria for “jointly
undertaken criminal activity” outlined in section 1B1.3(a)(1)(B). Section 1B1.3(a)(2)—on
which the government relies—states that for grouped counts, “all acts and omissions
described in subdivisions (1)(A) and (1)(B) above that were part of the same course of
conduct or common scheme or plan as the offense of conviction” also are included in
relevant conduct. Id. § 1B1.3(a)(2) (emphasis added). Thus, to qualify as relevant
conduct as part of a “course of conduct or common scheme or plan,” the conduct still
must meet the criteria in either U.S.S.G. § 1B1.3(a)(1)(A) or (a)(1)(B). 	And that makes
sense because it ensures that a defendant is punished only for acts that he personally
participated in or that were reasonably foreseeable as part of a conspiracy. See Rigo,
649 F. App’x at 108 (explaining that focus of Guidelines calculation “is the scope of the
individual defendant’s undertaking” (citation omitted)).
Here, however, there is no evidence that Bongiovanni “committed, aided,
abetted, counseled, commanded, induced, procured, or willfully caused” the fentanyl
distribution. See U.S.S.G. § 1B1.3(a)(1)(A). Rather, the evidence demonstrated that as
part of the conspiracy, Bongiovanni generally helped the Serio DTO evade detection.
Therefore, to be counted as relevant conduct, the fentanyl must meet the standard for
“jointly undertaken criminal activity,” including being reasonably foreseeable to
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Bongiovanni. See id. § 1B1.3(a)(1)(B). And because there was scant, if any, evidence
that Bongiovanni could reasonably foresee that Serio was distributing fentanyl,
Bongiovanni cannot be sentenced based on the fentanyl drug weight.
* * *
This Court therefore finds that under the Guidelines, the drug weight for which
Bongiovanni is responsible on count 3 includes 49.9 kilograms of marijuana (49.9
kilograms of converted drug weight) and 2 kilograms of cocaine (400 kilograms of
converted drug weight), for a total of 449.9 kilograms of converted drug weight. That
puts his relevant conduct in the range of at least 400 kilograms but less than 700
kilograms of converted drug weight, which results in a base offense level of 26. See
U.S.S.G. § 2D1.1(c)(7).
B. 	Grouping
The Guidelines provide that
All counts involving substantially the same harm shall be grouped together
into a single Group. Counts involve substantially the same harm within the
meaning of this rule:
(a) 	When counts involve 	the 	same 	victim 	and 	the 	same 	act 	or
transaction.
(b) 	When counts involve the same victim and two or more acts or
transactions 	connected 	by 	a 	common 	criminal 	objective 	or
constituting part of a common scheme or plan.
(c) 	When one of the counts embodies conduct that is treated as a
specific offense 	characteristic 	in, 	or 	other 	adjustment 	to, 	the
guideline applicable to another of the counts.
(d) 	When the offense level is determined largely on the basis of the total
amount of harm or loss, the quantity of a substance involved, or
some other measure of aggregate harm, or if the offense behavior is
ongoing or continuous in nature and the offense guideline is written
to cover such behavior.
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U.S.S.G. § 3D1.2.
As explained above, the PSR divided the counts into three groups: counts 1 and
3 (the conspiracy counts related to the Serio DTO); counts 6, 7, 11, and 13 (the
obstruction counts related to the Serio DTO); and counts 8, 10, and 15 (the Gerace-
related counts). See Docket Item 1503 at ¶¶ 83-107. Bongiovanni argues that instead
of three groups, the counts should be in two groups: one involving Gerace and the other
involving Selva and the Serio DTO. But as explained above, the PSR ultimately
combined groups 1 and 2—that is, all the counts related to the Serio DTO—for its
Guidelines calculation, see id. at ¶ 86, and the government does not object to that
grouping, see Docket Item 1578 at 50. So as far as the final Guidelines calculation is
concerned, Bongiovanni’s objection does not appear to make a difference.
That being said, this Court agrees with Bongiovanni that—to the extent it
matters—the counts should be divided into two groups: one involving the counts related
to the Serio DTO and the other involving the counts related to Gerace. Beginning with
the opening statements by both sides, Bongiovanni’s trial focused on two separate
conspiracies in which Bongiovanni’s alleged role was to cover his coconspirators’
tracks. Thus, this is not like a case where a defendant distributed drugs and then lied
about it. Here, the obstruction counts stem from the same conduct that underlies the
conspiracy counts. Indeed, the government concedes that “the obstruction-related
offenses, [c]ounts 6[, ]7, 11, and 13 ([g]roup 2), were all obstruction-related conduct that
were a part of the same series of transactions underlying [c]ounts 1 and 3 ([g]roup 1).”
Id. And because the conspiracy counts and the obstruction counts concerning the Serio
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DTO involve the same victim and the same acts and transactions, they are properly
grouped under U.S.S.G. § 3D1.2.
C. 	Firearm Enhancement
The PSR applied a two-level enhancement because “a dangerous weapon
(including a firearm) was possessed by multiple members of the conspiracy,” including
Serio and Masecchia. Docket Item 1503 at ¶ 90 (citing U.S.S.G. § 2D1.1(b)(1)). The
Guidelines provide that this enhancement “reflects the increased danger of violence
when drug traffickers possess weapons” and “should be applied if the weapon was
present, unless it is clearly improbable that the weapon was connected with the
offense.” U.S.S.G. § 2D1.1 cmt. n.11. As with the drug weight calculation, the question
is whether any coconspirator’s possession of a dangerous weapon was reasonably
foreseeable to Bongiovanni. See id. § 1B1.3(a)(1)(B).
Bongiovanni again asks this Court to infer from the jury’s verdict on count 3 that
he was convicted only of “protecting Selva and his basement grow” and therefore that
“attribution of the firearms to . . . Bongiovanni would be improper.” Docket Item 1567 at
28; see also id. at 38 (Bongiovanni’s arguing that he “was acquitted of conspiring with
Ron Serio and Michael Masecchia, so applying this specific offense characteristic based
on Serio’s or Masecchia’s possession of a firearm is improper and violates U.S.S.G.
§ 1B1.3(c)”). 	The Court rejects this argument for the same reason it did with respect to
Bongiovanni’s Rule 29 motion. See Bongiovanni, 2025 WL 2462445, at *4. But there
still remains the question of whether there is sufficient evidence for this Court to find that
Bongiovanni could reasonably foresee that his coconspirators would possess firearms
in furtherance of the conspiracy.
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As the government observes, the report Bongiovanni prepared in connection with
Kaiser’s work as a confidential source noted that “Kaiser provided information to the
defendant that members of the Serio DTO were connected to firearms.” See Docket
Item 1578 at 51. More specifically, the report stated that “Kaiser has been 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.” Id. at 27 (some capitalization omitted) (emphasis added) (quoting
Gov. Ex. 9E-4). The government also notes that “as a trained DEA agent,
[Bongiovanni] has sworn to a federal magistrate judge in support of a search warrant
that drug dealers possess firearms, and that they are among the tools of the drug
trade.” Id. at 51.
The fact that Bongiovanni generally knew that drug dealers often use firearms is
not sufficient—by itself—to make a particularized finding that Bongiovanni could
reasonably foresee that the Serio DTO he agreed to protect possessed firearms. But
combined with the information above about Bongiovanni’s knowledge of the Serio
DTO’s transporting firearms, and again mindful of the preponderance of the evidence
standard, the Court finds that Bongiovanni could have reasonably foreseen that
members of the Serio DTO whom he agreed to protect possessed firearms in
connection with the narcotics conspiracy. Thus, the PSR properly applied the firearm
enhancement.
D. 	Abuse of Public Trust with Respect to Counts 8, 10, and 11
The Guidelines provide for a two-level enhancement “[i]f the defendant abused a
position of public or private trust, or used a special skill, in a manner that significantly
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facilitated the commission or concealment of the offense.” U.S.S.G. § 3B1.3 “For this
adjustment to apply, the position of public or private trust must have contributed in some
significant way to facilitating the commission or concealment of the offense (e.g., by
making the detection of the offense or the defendant’s responsibility for the offense
more difficult).” Id., cmt. n.1 (italics omitted). The Second Circuit applies a two-pronged
test to determine whether the abuse of public trust enhancement applies: “(1) whether
the defendant occupied a position of trust from the victim’s perspective and (2) whether
that abuse of trust significantly facilitated the commission or concealment of the
offense.” United States v. Huggins, 844 F.3d 118, 124 (2d Cir. 2016) (internal quotation
marks omitted); see also United States v. Nuzzo, 385 F.3d 109, 115 (2d Cir. 2004).
Bongiovanni argues that the PSR improperly applied this enhancement to counts
8, 10, and 11. See Docket Item 1567 at 41. With respect to count 11 (Bongiovanni’s
minimizing his contacts with Gerace in an interview with Special Agent David Carpenter
on March 29, 2019), Bongiovanni notes that he “committed this act when he was retired
from the DEA, so, at least at the time of this offense, [he] no longer occupied a position
of public trust and this enhancement should not apply.” Id. For count 8 (obstruction of
justice based on memorandum dated November 1, 2018, minimizing relationship with
Gerace) and count 10 (obstruction of justice based on memorandum dated January 28,
2019, misrepresenting Special Agent Anthony Casullo’s relationship with Gerace),
Bongiovanni acknowledges that he held a position of public trust at the relevant time but
argues that the evidence did not demonstrate that his “position of public trust
‘significantly facilitated the commission or concealment of the offense.’” Id. (quoting
U.S.S.G. § 3B1.3).
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The government counters that “it is difficult to imagine a more obvious abuse of
trust than the defendant’s use of his position of trust and authority to help Gerace
remain free to distribute drugs for over a decade.” Docket Item 1578 at 55. But
Bongiovanni was acquitted both of conspiring with Gerace to defraud the United States
and of conspiring with Gerace to distribute drugs. With respect to Gerace, Bongiovanni
was convicted only of obstructing justice by putting false information about his and
Gerace’s relationship into memoranda and making false statements. Thus, those acts
are the only ones this Court will consider with respect to the enhancement.
After carefully considering those acts, however, the Court agrees with the
government that with respect to counts 8 and 10, Bongiovanni’s position as a DEA
agent “contributed in some significant way to . . . making the detection of the offense
[and Bongiovanni’s] responsibility for the offense more difficult.”6 U.S.S.G. § 3B1.3 cmt.
n.1. In particular, on those two counts, Bongiovanni was convicted of obstructing justice
by making false and misleading statements in internal DEA memoranda he wrote about
his and Casullo’s relationship with Gerace. Because Bongiovanni was a sworn DEA
agent, those memoranda had more credibility and weight than, for example, a letter
mailed to the DEA by a civilian. His position of trust therefore “increase[d] his chances
of succeeding or of avoiding detection,” and the enhancement therefore applies. See
6 The Court agrees with Bongiovanni that the government has not established
that the enhancement should apply to count 11 in light of the fact that he was no longer
a DEA agent at the time of the interview in which he made false statements. Ultimately,
however, the offense level for the grouped counts will be the highest offense level in the
group, see U.S.S.G. § 3D1.3(a), so this will not make a difference in Bongiovanni’s
Guidelines calculation.
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United States v. Sampson, 898 F.3d 287, 313 (2d Cir. 2018) (quoting United States v.
Fritzson, 979 F.2d 21, 22 (2d Cir. 1992)).
IV. 	GOVERNMENT’S OBJECTION
The government also objects to the PSR, arguing that an additional three-level
enhancement for an aggravating role under U.S.S.G. § 3B1.1(b) should be added to
Bongiovanni’s offense level. That section provides that “[i]f the defendant was a
manager or supervisor (but not an organizer or leader) and the criminal activity involved
five or more participants or was otherwise extensive, increase by 3 levels.” U.S.S.G.
§ 3B1.1(b). “A defendant may properly be considered a manager or supervisor if he
‘exercised some degree of control over others involved in the commission of the offense
or played a significant role in the decision to recruit or to supervise lower-level
participants.’” United States v. Blount, 291 F.3d 201, 217 (2d Cir. 2002) (alterations
omitted) (quoting Ellerby v. United States, 187 F.3d 257, 259 (2d Cir. 1998)).
The Court agrees with Bongiovanni that there was no evidence demonstrating
that he played the role of a manager in the conspiracy. Instead, the evidence
suggested that he “occupied a singular role in this conspiracy and ‘controlled’ nobody
else.” See Docket Item 1577 at 14.
The government confuses evidence that Bongiovanni provided advice to Selva
about how to evade detection with evidence that Bongiovanni controlled Selva. For
example, the government notes that Bongiovanni gave “repeated directives to Selva [to]
pretend that [Bongiovanni] was recruiting Selva to be an informant in the event law
enforcement approached Selva and questioned him about the criminal conspiracy.”
Docket Item 1566 at 5. Similarly, the government says that Bongiovanni preferred “to
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meet with Selva to provide information” and that Bongiovanni controlled “certain details
he provided to Selva to pass along to other co-conspirators.” Id. But the fact that
Bongiovanni gave Selva suggestions about how to avoid detection and controlled the
information flow to Selva do not demonstrate that Bongiovanni “exercise[d] some
degree of control over” Selva. See Blount, 291 F.3d at 217 (emphasis added) (quoting
Ellerby, 187 F.3d at 259). There is no evidence, for example, that Selva was required
by anyone to follow Bongiovanni’s suggestions or that there would be consequences
from others in the conspiracy for failing to do so.
The Court therefore finds that the government has not proved by a
preponderance of the evidence that Bongiovanni had control over others in the
organization or that he played a significant role in recruiting or supervising lower-level
participants. And the Court therefore overrules the government’s objection to the PSR’s
failure to include an aggravating role enhancement.
CONCLUSION
For all those reasons, this Court sustains in part and overrules in part
Bongiovanni’s objections to the PSR, Docket Item 1567, and overrules the
government’s objection to the PSR, Docket Item 1566. More specifically, the Court
finds that (1) the counts should be grouped into two rather than three groups, (2)
Bongiovanni’s relevant conduct involves at least 400 kilograms but less than 700
kilograms of converted drug weight, (3) the firearm enhancement was properly applied,
(4) the abuse of public trust enhancement was properly applied as to the group of
counts related to Gerace, and (5) the PSR properly declined to apply the manager
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enhancement.7 The United States Probation Office shall revise the PSR consistent with
this decision and order by October 31, 2025. The Court will issue a text order
scheduling Bongiovanni’s sentencing.
SO ORDERED.
Dated: 	October 10, 2025
Buffalo, New York
/s/ Lawrence J. Vilardo
LAWRENCE J. VILARDO
UNITED STATES DISTRICT JUDGE
7 As explained above, see supra note 2, the Court declines to rule on the parties’
many objections to PSR’s recitation of the facts. Consistent with this opinion, however,
the revised PSR should make clear that any “facts” involving conduct on which
Bongiovanni was acquitted are the government’s allegations, not proven conduct.
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