USA v. Bongiovanni, et al.

OCR transcription for search; preserved printed pages are authoritative

Case 1:19-cr-00227-LJV-MJR Document 504 Filed 06/06/23. Page1lof3

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK

UNITED STATES OF AMERICA,

v. 19-CR-227 (JLS) (MJR)

JOSEPH BONGIOVANNI,
PETER GERACE, JR.,

Defendants.

UNITED STATES OF AMERICA,

v. 238-CR-37 (JLS) (MJR)

PETER GERACE, JR.,

Defendant.

DECISION AND ORDER

At the conclusion of the detention hearing on March 27, 2023, the Court
determined that the statutory factors, facts, and circumstances before it required

Defendant Peter Gerace, Jr.’s detention pending trial:

I’ve heard everything I heard on Friday[, March 24, 2023] and today,
all pursuant to the factors in [18 U.S.C. § 3142(g)], which I’ve studied
at length.

Like I noted on Friday, a major focus for me is how I’m to weigh Mr.
Gerace’s compliance with the conditions in the 19-CR-227 case, on the
one hand, with several items to kind of—[to] counter [that] and stand
in the face of that; and things like the new detail that I’ve heard from
[the Government] surrounding the Facebook incident, which resulted
in the three counts of indicted conduct related to the Facebook
incident in this case, including the corroboration of those details.

Case 1:19-cr-00227-LJV-MJR Document504_ Filed 06/06/23. Page 2of3

Also new to me is the Government’s proffer about Mr. Gerace
referring to the victim witness as a snitch prior to the November 19,
2019 alleged conduct, and in real time as well.

I still have some concerns as well about the Government’s proffer
about Mr. Gerace’s apparent willingness to use his contacts in the
legal system to improperly disadvantage those perceived as being
against him.

And there, in part, I’m concerned about [two incidents] that I heard
about on Friday as well.

The cocaine and drug supplying and prostitution [proffers] aren't good
facts either.

The loan application [proffers], at a minimum, present recent
untrustworthy activity from June, 2020 and July, 2021. Some of that
activity after [Mr. Gerace was] release[d] in the 19-CR case.

And in particular, noteworthy is the denial of prior convictions and
current indictment, among other items on those applications.

I also note that—I don’t know if I need to note that, but I note that
witness tampering is something that goes to the heart of the justice
system.

And I think that’s something that, at a minimum, [United States v.
LaFontaine, 210 F.3d 125 (2d Cir. 2000),] accounts for and speaks to.

Taking into account all of the [Section 3142(g)] factors, including
defendant’s past conduct and how that relates to the safety of
witnesses in this case and the safety of witnesses in the 19-CR case,
I note that defendant’s record of compliance is sufficient to rebut the
presumption in [Section 3142(e)(8)].

Nevertheless, I find by clear and convincing evidence that no
condition or combination of conditions will reasonably assure the
safety of any other person [and] the community, especially vis-a-vis
witnesses against Mr. Gerace.

Dkt. 15 (28-CR-37), at 32-34.
On May 24, 2023, Gerace moved to re-open the detention hearing and for pre-

trial release (Dkt. 491; Dkt. 493), which the Government opposed (Dkt. 497; Dkt.

Case 1:19-cr-00227-LJV-MJR Document504_ Filed 06/06/23. Page3of3

498). The Court heard oral argument on May 31, 2023, and received supplemental
briefing from Gerace and the Government. Dkt. 501; Dkt. 502; Dkt. 503.

The Court has painstakingly considered all arguments on both sides,
balancing Gerace’s liberty interest with the need for witness and public safety—
specifically, how the existing factors bear on whether the Court can conclude, by
clear and convincing evidence, that “no condition or combination of conditions will
reasonably assure the safety of any other person and the community.” See 18
U.S.C. § 3142(f). Here, as in all cases, the Court is aware of the need for a careful
balance of the competing concerns involved in the analysis of pre-trial release or
detention, as well as the implications for Gerace and the public based on where the
balance is struck. See generally United States v. Salerno, 481 U.S. 739, 746-47, 755
(1987).

In sum, the Court has reviewed the parties’ proffers, arguments, and written
submissions and identifies no basis, on this record, to grant Gerace’s motion for pre-
trial release.! The Court therefore denies Gerace’s motion to re-open the detention
hearing and for pre-trial release (Dkt. 491), in its entirety.

SO ORDERED.

Dated: June 6, 2023
Buffalo, New York

1 At the May 31, 2023 oral argument, the Court denied the portion of Gerace’s
motion that sought to re-open the detention hearing.

3