USA v. Bongiovanni, et al.

OCR transcription for search; preserved printed pages are authoritative

Case 1:19-cr-00227-LJV-MJR Document 442 Filed 04/28/23. Page 1 of 30

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. 23-CR-37 (JLS) (MJR)

PETER GERACE, JR.,

Defendant.

DECISION AND ORDER

Defendants Joseph Bongiovanni and Peter Gerace, Jr. are charged in the
eighteen-count second superseding indictment in case number 19-CR-227 with
offenses related to defrauding the United States, bribery, distributing controlled

substances, obstruction of justice, making false statements, and sex trafficking,

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spanning from 2005 to 2019.! See Dkt. 89.2 Gerace also is charged in the four-count
indictment in case number 23-CR-37 with witness tampering and possession with
intent to distribute, and distribution of, cocaine, all on November 19, 2019. See Dkt.
1 (23-CR-37).

Both Defendants filed severance motions in 19-CR-227, pursuant to Federal
Rules of Criminal Procedure 8 and 14. Dkt. 296, at 11-12 (Gerace’s renewed
severance motion);3 Dkt. 321 (Gerace’s supplemental submission in support of his
severance motion); Dkt. 343 (Bongiovanni’s severance motion); Dkt. 362 (affidavit in
support of Bongiovanni’s severance motion). The Government opposed both
motions. Dkt. 328 (opposition to Gerace’s motion); Dkt. 365 (opposition to
Bongiovanni’s motion). Each Defendant replied. Dkt. 329 (Gerace); Dkt. 369
(Bongiovanni).

In addition, the Government moved to consolidate for trial the indictment

against Gerace in case number 23-CR-37 with the second superseding indictment

against both Defendants in case number 19-CR-227. Dkt. 411; Dkt. 11 (23-CR-37).

' The obstruction of justice and false statements counts charge only Bongiovanni.
The sex-trafficking conspiracy count charges only Gerace. Each charge has a
slightly different timeframe, but the alleged conduct began in 2005 and continued
through 2019. See generally Dkt. 89, at 17-26 (in Count 2, alleging Bongiovanni
and Gerace conspired with intent to defraud the United States between 2005 and
February 2019), 30 Gn Count 7, alleging Gerace maintained a drug-involved
premises between 2006 and December 2019).

2 Unless noted otherwise, citations to docket entries refer to those in case number
19-CR-227.

3 Unless noted otherwise, all page references are to those automatically generated

by CM/ECF, which appear in the header of each page.
2

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The Court directed both Defendants to respond to the Government's motion,
addressing both Rules 13 and 14 of the Federal Rules of Criminal Procedure. Dkt.
412; Dkt. 14 (23-CR-37). Each Defendant responded in opposition to the
Government's motion. Dkt. 424 (Gerace); Dkt. 425 (Bongiovanni). The Government
replied. Dkt. 485; Dkt. 16 (23-CR-37).

On April 12, 2023, the Court issued a text order denying, in full. Defendants’
severance motions. Dkt. 434. This Decision and Order now “explain[s] why the
specifics of this case and the relevant caselaw require denial” of Defendants’
motions. See id. This Decision and Order also addresses the Government's motion
to consolidate for trial the indictment in 23-CR-37 with the second superseding
indictment in 19-CR-227, which the Court GRANTS for the reasons below.

DISCUSSION

I. Defendants’ Severance Motions

Defendants’ severance motions lack merit. Each Defendant argues that
Federal Rule of Criminal Procedure 8 requires severance because the second
superseding indictment suffers from misjoinder, and that Rule 14 requires
severance because a joint trial would result in prejudice to each Defendant, for

various reasons.4

4 At times, the parties do not frame their arguments under the correct rule. The

Court analyzes each argument under the appropriate rule and standard—which

may not be the rule a party cites for that particular argument. Nevertheless, the
Court has considered each argument raised for all applicable purposes.

3

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In particular, Bongiovanni argues he will suffer prejudice in a joint trial with
Gerace as a result of the sex-trafficking conspiracy count, which charges only
Gerace, due to the nature of that charge, and also because the second superseding
indictment alleges he had a relationship with Gerace during the relevant time
periods. Bongiovanni also argues that a joint trial with Gerace would preclude him
from calling Gerace to testify on his behalf because Gerace would invoke his Fifth
Amendment rights at a joint trial, but would testify on Bongiovanni’s behalf in
severed trials, if Gerace’s trial occurred first.

Gerace argues that certain counts charging Bongiovanni only' were misjoined
with the counts charging Gerace, and that a joint trial of Gerace and Bongiovanni
that includes those counts would result in prejudice to Gerace. He also argues he
would suffer prejudice from a joint trial with Bongiovanni on Count 2 (charging
both Defendants with conspiracy to defraud the United States), Count 8 (charging
both Defendants with conspiracy to distribute controlled substances), and any other
count that would involve proof related to organized crime—which, Gerace asserts, is
relevant only to Bongiovanni's state of mind.

A. Legal Standards

1. Rule 8
Rule 8 of the Federal Rules of Criminal Procedure governs claims of

misjoinder. It provides:

5 Counts 1, 3, 4, 10, 11, 16, 17, and 18. See Dkt. 321-1.
4

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(a) Joinder of Offenses. The indictment or information may charge a
defendant in separate counts with [two] or more offenses if the
offenses charged .. . are of the same or similar character, or are based
on the same act or transaction, or are connected with or constitute
parts of a common scheme or plan.

(b) Joinder of Defendants. The indictment or information may charge
[two] or more defendants if they are alleged to have participated in
the same act or transaction, or in the same series of acts or
transactions, constituting an offense or offenses. The defendants may
be charged in one or more counts together or separately. All
defendants need not be charged in each count.

Fed. R. Crim. P. 8. If offenses or defendants are improperly joined under Rule 8, a
party need not demonstrate it would suffer prejudice if the court were to deny
severance. See United States v. Feyrer, 333 F.3d 110, 113 (2d Cir. 2003) (“Unless
the standards set out in Rule 8(b) are met, a motion for severance should be granted
even absent a showing of prejudice.”).

Courts analyze whether offenses are properly joined under Rule 8(a). See
United States v. Blakney, 941 F.2d 114, 116 (2d Cir. 1991) Goinder of offenses
permitted “where they ‘are based on... two or more acts or transactions connected

399

together”) (quoting Fed. R. Crim. P. 8(a)). When analyzing joinder of offenses under
Rule 8(a), “no one characteristic is always sufficient to establish similarity of
offenses, and each case depends largely on its own facts.” Jd. (internal quotation
marks and citations omitted).

Claims that an indictment improperly joined defendants, on the other hand,
fall under Rule 8(b). See United States v. Cervone, 907 F.2d 382, 340-41 (2d Cir.

1990) (Rule 8(b) “states that participation of multiple defendants in the ‘same act or

transaction,’ or the same ‘series’ of such acts, will authorize joint trial on common or

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individual counts”) (quoting Fed. R. Crim. P. 8(b)). Where—as here—a court
considers severance motions in a case involving multiple defendants, it applies the
stricter Rule 8(b) standard. See United States v. Turoff, 853 F.2d 1037, 1043 (2d
Cir. 1988). As a result, “multiple defendants cannot be tried together on two or
more ‘similar’ but unrelated acts or transactions; multiple defendants may be tried
together only if the charged acts are part of a ‘series of acts or transactions
constituting an offense or offenses.” Id. (quoting Fed. R. Crim. P. 8(a). (b)).

The Second Circuit has “construed [Rule 8(b)] to mean that joinder is proper
where two or more persons’ criminal acts are unified by some substantial identity of
facts or participants, or arise out of a common plan or scheme.” Cervone, 907 F.2d
at 341 (internal quotation marks and citations omitted). When evaluating joinder
under Rule 8(b), courts “apply a commonsense rule to decide whether, in light of the
factual overlap among charges, joint proceedings would produce sufficient
efficiencies such that joinder is proper notwithstanding the possibility of prejudice
to either or both of the defendants resulting from the joinder.” United States v.
Rittweger, 524 F.3d 171, 177 (2d Cir. 2008) (quoting United States v. Shellef, 507
F.3d 82, 98 (2d Cir. 2007)) (internal quotation marks omitted). The Rule 8(b)
inquiry “turns on what is ‘alleged’ in the ‘indictment,” and any events that may
“transpire at trial are not relevant.” Jd. at 178 (quoting Fed. R. Crim. P. 8(b)).

A “non-frivolous conspiracy charge is sufficient to support joinder of
defendants under [Rule] 8(b).” United States v. Nerlinger, 862 F.2d 967, 973 (2d

Cir. 1988) (defendants properly joined where “alleged to have participated in the

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same conspiracy and evidence of the central features of that conspiracy ... was
relevant to both defendants,” even though they “were not alleged to have had any
direct contact with regard to the conspiracy and... their respective acts committed
in furtherance of the conspiracy occurred during chronologically distinct periods”):
see also Turoff, 853 F.2d at 1044 (defendants properly joined where “key link
[existed] between the two offenses—one scheme stemmed from the other[,]” the
“acts involved in each scheme ha[d] more than a temporal and spatial relationship,”
and “proof of one scheme [was] indispensable for a full understanding of the other’).
Joinder of defendants may be proper even where defendants are not charged
together in a single, overarching conspiracy. Sve Rittweger, 524 F.3d at 178
(“Provided that the defendants are ‘alleged to have participated in the same act or
transaction, or in the same series of acts or transactions, constituting an offense or
offenses,’ . .. members of two or more conspiracies may be joined as defendants even
where the members have not been charged as participating in one overarching
conspiracy.”) (quoting Fed. R. Crim. P. 8(b)); see also Feyrer, 333 F.3d at 114
(defendants properly joined where “neither ... was charged in the conspiracy counts
of the other” and “the only defendant charged with participating in both
conspiracies[] pled guilty prior to trial,” where “the two conspiracies shared a
common plan”); Cervone, 907 F.2d at 341 (defendant properly joined, even where the
“link between [him] and the rest of the indicted defendants [was] somewhat
tenuous,” and he was not charged in the RICO conspiracy count included in the

indictment).

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2. Rule 14

Even if offenses or defendants are properly joined under Rule 8, courts may
grant severance if a party would suffer prejudice from a trial at which offenses or
defendants are tried together. See Feyrer, 333 F.3d at 114; Blakney, 941 F.2d at
116. Rule 14 provides: “If the joinder of offenses or defendants in an indictment...
or a consolidation for trial appears to prejudice a defendant or the government, the
court may order separate trials of counts, sever the defendants’ trials, or provide
any other relief that justice requires.” Fed. R. Crim. P. 14(a).

To prevail under Rule 14, the moving party must demonstrate “substantial
prejudice,” which entails showing that a miscarriage of justice would occur if
severance were denied. United States v. Potamitis, 739 F.2d 784, 790 (2d Cir. 1984).
The moving party must show more than “simply ... a better chance of acquittal” if
severance were granted, id., or that “a separate trial would have benefitted the
defendant” in some way, Cervone, 907 F.2d at 341. Prejudice that may justify
severance exists “only when ‘there is a serious risk that a joint trial would
compromise a specific trial right of one of the defendants, or prevent the jury from
making a reliable judgment about guilt or innocence.” Rittweger, 524 F.3d at 179
(quoting Zaftro v. United States, 506 U.S. 534, 539 (1993)).

When assessing prejudice under Rule 14, courts consider “to what extent the
evidence presented at the joint trial would have been admitted at a single-
defendant trial because of the alleged conspiratorial nature of the illegal activity.”

United States v. Villegas, 899 F.2d 1324, 1847 (2d Cir. 1990). Courts also consider

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“whether the jury was instructed to assess the evidence against each defendant
separately from the proof against the other defendants.” Id. That evidence may be
admissible against one defendant but not the other, however, does not
automatically require severance. See Rittweger, 524 F.3d at 179. In such
situations, courts also consider whether “the evidence with respect to each of the
defendants [is] sufficiently straightforward that the jury [can] consider it without
any significant spillover effect.” Id.

The Supreme Court “has recognized [that] limiting instructions are often
sufficient to cure any risk of prejudice.” United States v. Walker, 142 F.3d 108, 110
(2d Cir. 1998) (citing Zaftro, 506 U.S. at 539); see also Feyrer, 333 F.3d at 114 (even
“where the risk of prejudice is high[,] . . . less drastic measures—such as limiting
instructions—often suffice as an alternative to granting a Rule 14 severance
motion”). For example, careful use of limiting instructions “throughout the trial
explaining when evidence could not be considered against a particular defendant.”
and a final jury charge that “carefully explain[s] that the jurors must consider the
case against each defendant separately,” can mitigate any prejudice resulting from
joinder. Rittweger, 524 F.3d at 179.

Other relevant factors courts may consider in the Rule 14 analysis include:
(1) “the number of defendants and the number of counts:” (2) “the complexity of the
indictment;” (3) “the estimated length of the trial;” (4) “disparities in the amount or
type of proof offered against the defendants;” (5) “disparities in the degrees of

involvement by defendants in the overall scheme;” (6) “possible conflict between

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various defense theories or trial strategies;” and (7) “prejudice from evidence
admitted only against co-defendants but which is inadmissible or excluded as to a
particular defendant.” United States v. Gallo, 668 F. Supp. 736, 749 (E.D.N-Y.
1986). No single factor is dispositive; rather, “the ultimate question is whether the
jury can keep the evidence relevant to each defendant separate and render a fair
and impartial verdict as to each defendant.” United States v. Locascio. 357 F. Supp.
2d 536, 543 (E.D.N.Y. 2004) (citing Gallo, 668 F. Supp. at 749).

A court’s “assessment of the risk of prejudice is . . . fact specific... and
depends on the circumstances of each case.” Id. at 548. And whether to grant
severance under Rule 14 “falls within the discretion of the trial court.” Potamitis,
739 F.2d at 790.

B. Analysis

1. Bongiovanni

Bongiovanni argues three bases for severance: (1) the sex-trafficking

conspiracy charge against Gerace in Count 9 is improperly joined with the charges

against him;® (2) even if properly joined. a joint trial that includes Count 9 will

6 In his initial severance motion, addressed to Judge Roemer, Bongiovanni moved to
sever Count 7, which charges Gerace with maintaining Pharaoh's Gentlemen’s Club
as a drug-involved premises between 2006 and December 12, 2019. See Dkt. 149. at
4; Dkt. 89, at 30. Bongiovanni does not move to sever Count 7 in his current
motion; indeed, he implicitly concedes that Count 7 is sufficiently related to the
drug conspiracy charge against both him and Gerace in Count 8. See Dkt. 369, at 3
(“Mr. Bongiovanni does not object to the proof that the government claims it has
that there were drugs used and/or sold at Pharaoh’s.... That is relevant to the
drug conspiracy.”). The Court therefore deems Bongiovanni’s Count 7 argument
abandoned, but notes that abandonment does not impact the Rule 8 analysis here,

10

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cause spillover prejudice to him; and (8) a joint trial results in prejuclice to him
because it precludes him from calling Gerace as a witness on his behalf.
i. Joinder under Rule 8

The second superseding indictment properly joins Count 9 with the charges
against Bongiovanni. A holistic view of the second superseding indictment reveals
that Bongiovanni and Gerace “are alleged to have participated” in both “the same
act or transaction” and “the same series of acts or transactions] constituting an
offense or offenses.” See Fed. R. Crim. P. 8(b).

Defendants are charged together in two non-frivolous conspiracy counts.
Count 2 alleges both Defendants conspired to defraud the United States by:

(1) “interfering with and obstructing .. . the lawful and legitimate
governmental functions and rights of the DEA”:

(2) “corruptly .. . giv[ing], offer[ing], and promis|[ing] a thing of value toa
public official, with intent to induce the performance of an official act and
to induce a public official to do an act and omit to do an act in violation of
his lawful duty”; and

(3) “corruptly ... demand[ing], seek[ing], receiv[ing], accept[ing]. and

agree[ing] to receive and accept, a thing of value personally. in return for
being influenced in the performance of an official act and for being

induced to do an act and omit to do an act in violation of official duty.”

where the second superseding indictment alleges—in compliance with Rule 8(b)—
that Defendants participated in the same act or transaction and series of acts or
transactions.

11

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Dkt. 89, at 18.

The indictment then alleges a number of manner and means, as well as overt
acts, taken by Defendants to execute the conspiracy. See id. at 18-26. As to the
manner and means, the indictment alleges Bongiovanni used his position as a DEA
special agent in various ways to shield his co-conspirators, friends, and associates—
including Gerace—from criminal investigation, and to help those co-conspirators.
friends, and associates navigate and minimize the impact of contact with law
enforcement when it occurred. See id. at 18-21. The indictment alleges that
Bongiovanni'’s conduct along those lines protected “G[erace] and [his] business,
Pharaoh’s Gentlemen’s Club[,] from federal narcotics investigations.” Id. at 19~20.

As to overt acts, the indictment alleges approximately twenty acts in
furtherance of the conspiracy between 2005 and 2019. See id. at 21-26. For
example, the indictment alleges Gerace called Bongiovanni after a stripper
overdosed at Pharaoh’s, and Bongiovanni “advised” Gerace “to ‘get her out’ of the
gentlemen's club.” Jd. at 23. It also alleges that. at “various times between... 2009
and... 2018, female dancers employed at Pharaoh’s have overdosed inside
Pharaoh’s after ingesting controlled substances.” Id. at 25. And it alleges Gerace
“knowingly maintained the premises known as Pharaoh's Gentlemen’s Club . . . to
facilitate prostitution; to provide drugs and money to Pharaoh’s employees in
exchange for sex with .. . G[erace] and others; and for the use and distribution of

controlled substances” between 2009 and 2019. Jd. at 26.

12

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Count 8 charges Bongiovanni and Gerace with conspiring to (1) “possess with
intent to distribute, and to distribute, cocaine, cocaine base, methamphetamine. ...
amphetamine also known as Adderall, .. . marijuana[,] and heroin,” and (2) “use
and maintain ... the premises known as Pharaoh’s Gentlemen's Club... for the
purpose of manufacturing, distributing, and using cocaine, cocaine base,
methamphetamine, ... amphetamine also known as Adderall, .. . marijuana[,] and
heroin,” between 2009 and 2019. Jd. at 31.

The allegations supporting each of these conspiracy charges make clear that
Bongiovanni and Gerace are alleged to have participated in a common plan or
scheme. Both Defendants are charged together in Count 2—a single, overarching
conspiracy—that, while not required for joinder under Rule 8(b), is a strong
indication joinder is proper. Count 2, in particular, alleges concrete examples of
direct interactions between Bongiovanni and Gerace in furtherance of the
conspiracy. In sum, the second superseding indictment’s joinder of the charges
against Bongiovanni with those against Gerace is proper under Rule 8(b).

ii. Prejudice

The next question is whether a joint trial of Bongiovanni and Gerace would
result in impermissible prejudice to Bongiovanni, either from the sex-trafficking
conspiracy charge against Gerace in Count 9, or from the unavailability of Gerace
as a witness.

Count 9 charges Gerace only with conspiring with others to commit sex

trafficking—specifically, conspiring to “recruit, entice, harbor, transport, provide.

13

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obtain, and maintain by any means, in and affecting interstate and foreign
commerce, persons,” to “benefit, financially and by receiving anything of value, from
participation in a venture which has engaged in such acts,” with knowledge and
reckless disregard for “the fact that means of force, threats of force, fraud, and
coercion, and a combination of such means, would be used to cause such persons to
engage in a commercial sex act.” Dkt. 89, at 32.

Although Bongiovanni is not charged in Count 9, evidence related to Count 9
would be admissible in a trial of Bongiovanni only, in light of the conspiracy charge
in Count 2. As discussed above, Count 2 charges Bongiovanni and Gerace with
conspiracy to defraud the United States, through Bongiovanni’s alleged use of his
position as a DEA special agent to protect Gerace and Pharaoh’s from federal
investigation and criminal charges. See supra Section [.B.1.i1. Count 2 contains
specific allegations related to overdoses at Pharaoh’s by dancers employed by
Pharaoh’s—including Bongiovanni’s direct association with such events—as well as
Pharoah’s being maintained to facilitate prostitution. See id. Bongiovanni is not
charged with conspiracy to commit sex trafficking, but his alleged conduct in
conspiring with Gerace to defraud the United States is interconnected with Gerace’s
alleged conduct in Count 9—essentially, enabling the conduct charged in Count 9.

The Government provides specific example of evidence it would seek to admit
in a joint trial as well as a trial of Bongiovanni only, including testimony from
Pharaoh’s dancers, Pharaoh’s employees, and other witnesses about overdoses and

the role drugs played in the alleged sex-trafficking conspiracy. See Dkt. 365, at 9—

14

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10. In particular, the Government argues it would offer evidence that Pharaoh’s
dancers were provided drugs to coerce them to engage in commercial sex acts, and
that fear of withdrawal symptoms also played a coercive role. See id. at 10.

The Second Circuit, and other circuit courts, have referenced the practice of
providing, withholding, and threatening to withhold drugs as evidence of coercion to
engage in commercial sex acts. See United States v. Shine, No. 20-314. 2022 WL
761520, at *2—*3 (2d Cir. Mar. 14, 2022) (noting that the defendant “exploited
victims’... withdrawal... to compel them to engage in commercial! sex acts when
they otherwise would not have done so,” and citing specific testimony from victims
along those lines); see also United States v. Wysinger, 64 F.4th 207, 212 (4th Cir.
2023) (noting defendant did “not dispute that manipulating vulnerable women by
exploiting their drug addictions in exchange for prostitution services can be coercion
within the meaning of Section 1591” or “that withdrawal symptoms can he ‘serious
harm’ within the statute’s broad definition of that term”); United States v.
Abraham, 63 F.4th 102, 110 (1st Cir. 2023) (noting victims provided testimony
about the defendant “manipulating them into joining his sex trafficking ring and his
use of coercive methods to keep them under his control, including causing
their drug addiction [and] withholding drugs”); United States v. Carson, 870 F.3d
584, 594 (7th Cir. 2017) (“[T]here is nothing blurry or in the grey area when the
coercion involves, rape, brutal physical violence, abrupt withholding of drugs to
cause severe withdrawal symptoms, death threats, taking women’s phones and

clothing and following them with GPS technology.”); United States v. Mack, 808

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F.3d 1074, 1081 (6th Cir. 2015) (citing trial evidence “that defendant coerced the
victims into prostituting themselves by initially supplying them with drugs under
the pretense that they were free[;] . . .[w]hen he suddenly cut them off and
demanded payment, he exploited their addiction, which his previous supply of free
drugs had cultivated”). The Court does not address whether any such evidence is
admissible here, but notes that the interconnected nature of the evidence mitigates
the risk of substantial prejudice to Bongiovanni from a joint trial.7

This is not to say that a joint trial, which includes Count 9, creates no
prejudice to Bongiovanni. But a joint trial will not result in the substantial
prejudice required to grant severance under Rule 14, especially in light of the

availability of limiting instructions to mitigate any prejudice. The Court expects to

instruct the jury—as it does in all multi-defendant trials—that the jury must
consider the evidence separately as to each defendant and as to each count charged

when reaching a verdict. As to any evidence the Court determines is admissible

“ The Court recognizes that another judge in this district has granted severance to a
defendant charged only with drug-related offenses, where his co-defendant was
charged with sex-trafficking offenses, over the government’s opposition and
argument that its theory of the case—that the co-defendant coerced the victims to
engage in commercial sex acts by providing them with drugs and exploiting their
addictions—made severance inappropriate. See United States v. Shine. No. 17-CR-
28-FPG-JJM, 2019 WL 2442145,at *6—*8 (W.D.N.Y. June 12, 2019). That case is
distinguishable because, there, the “alleged sex trafficking activities form[ed] the
central focus of the government’s case in terms of witnesses, [so] the amount of
prejudicial and otherwise inadmissible evidence [was] not ... inconsequential.” Jd.
at *7. Here, based on a holistic reading of the second superseding indictment and
the parties’ positions in the numerous submissions and representations, the sex-
trafficking conspiracy is not “the central focus of’ the Government’s case. For those
reasons, the Court declines to adopt the analysis in Shine here.

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solely as to Gerace, the Court will, if Bongiovanni requests, instruct the jury to
consider such evidence only as to Gerace. For these reasons, the inclusion of Count
9 in a joint trial does not require severance here.

Bongiovanni also argues that severance is required because he wishes to call
Gerace as a witness to testify on his behalf, but Gerace would invoke his Fifth
Amendment rights at a joint trial and, therefore, would be unavailable to
Bongiovanni as a witness. In support of this argument, Bongiovann: submitted an
affidavit from Gerace, confirming that Gerace “can and [is] willing to present
testimonial evidence ... on behalf of Mr. Bongiovanni that is exculpatory for him
and/or will help his defenses,” that Gerace would exercise his Fifth Amendment
rights in a joint trial, and that Gerace would be able to testify without exercising his
Fifth Amendment rights if he were tried before Bongiovanni. Dkt. 362 4 5-9.

A request to sever based on purportedly exculpatory statements from a co-
defendant falls under the Rule 14 prejudice analysis. See United States v. Ferguson,
676 F.3d 260, 286-87 (2d. Cir. 2011). The Second Circuit has identified four factors
trial courts may consider when evaluating severance motions based on a co-
defendant’s purported willingness to testify: (1) “the sufficiency of the showing that
the co-defendant would testify at a severed trial and waive his Fifth Amendment
privilege”; (2) “the degree to which the exculpatory testimony would be cumulative’:
(3) “the counter arguments of judicial economy’; and (4) “the likelihood that the
testimony would be subject to substantial, damaging impeachment.” United States

v. Finkelstein, 526 F.2d 517, 523-24 (2d Cir. 1975). Courts are not constrained to

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these factors; the factors “merely define the perimeters of the severance question—
the crucial inquiry remains whether the appellants were so prejudiced by a joint
trial under these circumstances that severance should have been granted.” Id. at
523.

Regarding the co-defendant’s willingness to waive his Fifth Amendment right
and testify, an affidavit to that effect is of limited value. See id. at 524. Where the
co-defendant had not pled guilty or indicated an intention to do so, “it is unrealistic
to think that [he] would be any more willing to waive his constitutional privilege
against self-incrimination when called as a witness at a separate trial than he
would be willing to insist upon his privilege as a defendant not to take the stand.”
Id. (internal quotation marks and citation omitted): see also United States v. Wilson,
11 F.3d 346, 354 (2d Cir. 1993) (where co-defendant purportedly willing to testify
“had not pleaded guilty, it was unrealistic to think that [he] would be any more
willing to waive his privilege at a separate trial than at the joint trial’).

Courts may be skeptical of a co-defendant’s purported willingness to testify
where the co-defendant “expressly condition[s]” his willingness to testify on being
tried before the defendant, which “indicat[es] that [he is] unlikely to waive the
privilege against self-incrimination at a separate trial unless [he] had already been
acquitted.” United States v. Bari, 750 F.2d 1169, 1177 (2d Cir. 1984); see also
Finkelstein, 526 F.2d at 524-25 (noting that scheduling the testifying co-defendant’s
trial first did not necessarily solve the Fifth Amendment issue, and cautioning that

cases referencing order of trials must be read in their specific contexts); United

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States v. Schlegel, No. 06-CR-0550 (JS), 2009 WL 3837305, at *2 (E.D.N.Y. Nov. 16,
2009) (co-defendant’s purported willingness to “testify if she [was] tried first [was]
speculative” because it was “premised on an unfounded claim that [the co-
defendant] would no longer have any Fifth Amendment concerns if her trial
proceeded first”—a premise that “[c]learly” was “incorrect”.

When considering whether the co-defendant’s testimony would be
cumulative, courts note that cross-examination may elicit similar testimony,
rendering the co-defendant’s testimony cumulative, even if “repetition of such
testimony might . . . increase[] the likelihood that it would be believed.” Finkelstein,
526 F.2d at 524. A lack of specific detail about the co-defendant’s purported
testimony also hampers a defendant seeking severance. See Bari, 750 F.2d at 1177
(“The substance of the allegedly exculpatory testimony is not detailed in the various
affidavits, and we are thus unable to weigh the importance of any of that testimony
against the evidence presented against [the defendant] at trial.”); see also
Finkelstein, 526 F.2d at 528 (affirming denial of severance motion even where
defendant offered detailed topics that co-defendants would testify about).

And courts recognize that a co-defendant indicted as part of the same alleged
conspiracy is “likely to be subject to substantial, damaging impeachment if he
testifies” on behalf of the defendant. See United States v. Levy, No. S5 11 Cr.
62(PAC), 2013 WL 787913, at *2 (S.D.N.Y. Mar. 4, 2013); see also Schlegel, 2009 WL

3837305, at *3 (noting that co-defendant’s “testimony would be subject to

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impeachment” because she and the defendant allegedly “jointly participated in the
alleged conspiracies for which they [were] charged”).

Each Finkelstein factor favors denying severance here. First, although
Gerace states he would testify on Bongiovanni’s behalf, he would do so only if he
were tried first. Dkt. 362 94 6, 9, 10. To this Court’s knowledge, Gerace has
indicated no willingness to plead guilty. In any event, the Court is not persuaded
that a separate trial of Gerace before Bongiovanni would eliminate Gerace’s Fifth
Amendment concerns. Second, Gerace’s purported testimony amounts to a general
denial of the alleged criminal conduct and is not set forth in enough detail for the
Court to weigh the significance of that testimony against the other evidence to be
presented at trial. See id. §{ 5, 7. Third, by all accounts, the parties expect this
trial to be lengthy and involve many witnesses, taxing the resources of the
Government, witnesses, victims, prospective jurors, the Court, and Defendants
themselves. And fourth, Gerace is charged as a co-conspirator in two conspiracy
charges against Bongiovanni, subjecting him to significant cross-examination
regarding his credibility. Under these circumstances, a joint trial, where
Bongiovanni is unable to elicit purportedly exculpatory testimony from Gerace, will
not result in substantial prejudice to Bongiovanni.

As to Bongiovanni’s severance motion generally, the Court also has
considered the factors identified in Gallo, 668 F. Supp. at 749, as appropriate, and
concludes that they counsel against severance here. The Court is confident that,

with the proper instructions, the jury will be able to “keep the evidence relevant to

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each defendant separate and render a fair and impartial verdict as to each
defendant.” See Locascio, 357 F. Supp. 2d at 543.
For all of these reasons, severance is not appropriate.
2. Gerace
Gerace seeks severance on two bases: misjoinder and prejudice.
i. Joinder

As with the portion of Bongiovanni’s motion seeking severance based on
misjoinder, Rule 8(b) governs Gerace’s misjoinder argument. Under Rule 8(b), the
Court must consider whether the second superseding indictment alleges
Bongiovanni and Gerace participated in “the same act or transaction” or “the same
series of acts or transactions|[] constituting an offense or offenses.” See Fed. R.
Crim. P. 8(b). For the reasons discussed above, the Court concludes that it does.
See supra Section I.B.1.i.

Gerace’s arguments to the contrary do not change the analysis. For example,
Gerace argues he is not charged in Count 16, which alleges Bongiovanni obstructed
justice by removing and concealing a DEA case file at his residence, and Count 16
does not incorporate by reference any charges against Gerace. But. even if true,
this argument does not render joinder improper under Rule 8(b) because the second
superseding indictment clearly alleges participation in the same act or transaction
and series of acts or transactions, and alleges that Count 16 is part of that series of
transactions. Nor is a RICO conspiracy charge required to join defendants in a

single indictment. See, e.g., Rittweger, 524 F.3d at 175, 177-79 (joinder of

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defendants proper in case involving conspiracy to commit securities and wire fraud,
among others) Nerlinger, 862 F.2d at 969, 973 (joinder of defendants proper in case
involving conspiracy to commit mail fraud); Turoff, 853 F.2d at 1042—44 (joinder of
defendants proper in case involving tax and mail fraud charges).

Gerace also argues that including in a joint trial charges against Bongiovanni
only that relate to Bongiovanni’s alleged conduct with Michael Masecchia§8 is
improper. He focuses on Count 1, which charges Bongiovanni with conspiracy to
defraud the United States between 2008 and 2019 through Bongiovanni'’s alleged
use of his position as a DEA special agent to shield his friends and associates,
including Masecchia, from investigation and charges for federal crimes. See Dkt.
89, at 4-17.

This argument, too, fails to alter the outcome of the Court’s analysis under
Rule 8(b). Regardless of the allegation that Bongiovanni engaged in a separate
conspiracy with Masecchia—during the same time period and using similar manner
and means? as the alleged conspiracy involving Bongiovanni and Gerace—the
indictment alleges that Bongiovanni and Gerace participated in the sa me act or
transaction and series of acts or transactions, rendering joinder of Defendants

proper under Rule 8(b). See Feyrer, 333 F.3d at 114 (“For instance, Fevrer, Wolff[.]

8 Masecchia pled guilty on December 9, 2020. See Dkt. 69.

® The manner and means alleged as to the Bongiovanni-Masecchia conspiracy
charged in Count 1 are similar to the manner and means alleged as to the
Bongiovanni-Gerace conspiracy alleged in Count 2. Although not critical to the
Court’s Rule 8(b) analysis, the Court notes that Count 1 appears to be part of the
same series of transactions as those charging Bongiovanni and Gerace.

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and the brokers at the Symons Group were common and central participants in
both stock manipulation plans. ... Moreover, the two conspiracies shared a
common plan, namely, to generate income for Feyrer, Wolff[,] and the Symons
Group brokers through fraudulent stock transactions.”). Gerace does not cite any
cases that compel a different conclusion.!° Cf. United States v. Kouzmine, 921 F.
Supp. 1131, 1133 (6.D.N.Y. 1996) (severance granted where there was “no colorable
argument... that both conspiracies alleged ... were part of a single overarching
scheme,” “[nlor [was] there an identity of participants’).

For these reasons, and those discussed in detail above at Section I.B.1.i, the
second superseding indictment properly joins the charges against Gerace with those
against Bongiovanni.

ii. Prejudice

The Court next considers whether a joint trial of Gerace and Bongiovanni
would result in impermissible, substantial prejudice to Gerace, counseling
severance under Rule 14. Gerace argues principally that a joint trial would
prejudice him because it would involve testimony and evidence about “Italian
Organized Crime,” which, he claims, relates only to Masecchia and Bongiovanni,
and not to the charges against him. The Court disagrees.

First, as the Court has stated on the record, it plans to address the

admissibility of evidence—and terminology—related to “Italian Organized Crime,”

10'To the extent United States v. Lech, 161 F.R.D. 255 (S.D.N.Y. 1995), may suggest
a different outcome, the Court declines to follow it—and instead adheres to the
Second Circuit’s Rule 8(b) authority.

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as appropriate, through motions in limine. In other words, it is not a foregone
conclusion that the Court will admit such—or all manner of such—evidence at trial.
Second, if the Court were to admit such evidence at trial, it would not relate solely
to Bongiovanni. Count 2—which charges Bongiovanni and Gerace—alleges, among

other things, that Bongiovanni acted to:

dissuade other members of law enforcement: from conducting
investigations of his coconspirators, friends, associates and
individuals [he] believed to be connected to or associated with IOC,1!
including the defendant GERACE and others; and from conducting
investigations into any individuals who may have been able to expose
his criminal activities and those of his friends, associates, and
individuals [he] believed to be connected to or associated with IOC.

Dkt. 89, at 19.12 Either way, the presence of allegations in the second superseding
indictment, and the possibility of evidence regarding organized crime at trial, do not
impose the substantial prejudice required to grant severance under Rule 14.

To the extent Gerace argues he will suffer spillover prejudice from the counts
charging only Bongiovanni—such as, for example, the obstruction of justice and
false statements charges in Counts 10, 11, 16, 17, and 18—the Court is confident

that, with the proper instructions, the jury will be able to “keep [any] evidence

11 The second superseding indictment defines IOC as “Italian Organized Crime.”
Dkt. 89, at 2.

12 The Court would entertain requests from Gerace for limiting instructions as to
specific evidence (if any) related to “Italian Organized Crime” that the Court
determines is admissible only against Bongiovanni. And, as explained above, before
the jury begins deliberations, the Court expects to instruct the jury that it must
consider evidence separately as to each Defendant and each charge.

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relevant to each defendant separate and render a fair and impartial! verdict as to
each defendant.” See Locascio, 357 F. Supp. 2d at 543.

iii. Request for Court Review of Grand Jury Minutes, and for
Disclosure

Gerace urges the Court, again, to “review all grand jury evidence and
instructions relating to the mafia and/or IOC,” and “renews his request for Rule 6
disclosure.” Dkt. 329, at 5.

The Court has considered, and denied, the request that it review grand jury
minutes. See Dkt. 319, at 8-9. Because nothing raised in these submissions
changes the Court’s previous decision, the Court denies Gerace’s request for Court
review of grand jury minutes, and for disclosure of such minutes.!3

II. Government’s Motion to Consolidate Indictments

The Government moves to consolidate for trial the indictment in case number
23-CR-37 with the second superseding indictment in case number 19-CR-227.
Because the charges against Gerace in the 28-CR-37 indictment could have been
joined with the charges against Bongiovanni and Gerace in the 19-CR-227 second
superseding indictment, and consolidating the indictments for trial does not result
in substantial prejudice to either Defendant, the Court grants the Government’s

motion.

13 'To the extent any of these grand jury minutes fall under 18 U.S.C. § 3500, the
Court trusts the Government has produced, or will produce, them to Defendants
pursuant to the January 9, 2023 protective order (Dkt. 347).

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Federal Rule of Criminal Procedure 18 provides: “The court may order that
separate cases be tried together as though brought in a single indictment or
information if all offenses and all defendants could have been joined in a single
indictment or information.” Fed. R. Crim. P. 13. Rule 18 refers to the joinder
requirements in Rule 8. See United States v. Halper, 590 F.2d 422, 428 (2d Cir.
1978) (noting that “reference is necessarily made to Rule 8(a) of the Federal Rules of
Criminal Procedure”). The Court discussed those Rule 8 standards at length above.
See supra Section I.A.1. To summarize, joinder of offenses is proper if the offenses
“are based on the same act or transaction, or are connected with or constitute parts
of acommon scheme or plan.” Fed. R. Crim. P. 8(a). And joinder of defendants is
proper if the defendants “are alleged to have participated in the same act or
transaction, or in the same series of acts or transactions.” Fed. R. Crim. P. 8(b).

After considering whether Rules 13 and 8 permit consolidation, courts must
consider whether impermissible prejudice would result from consolidation. See
Halper, 590 F.2d at 428 (“[C]onsolidation for trial under Rule 13 is permissible only
if the doctrine of trial expediency ... may be effected without interference with
substantial justice.” (internal quotation marks and citation omitted)). As such, the
Court must consider whether Federal Rule of Criminal Procedure 14(a) would
permit severance if the indictments were consolidated. See supra Section I.A.2

(discussing, at length, the Rule 14(a) standard).

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The indictment in 23-CR-37 charges Gerace with three counts of witness
tampering as to Witness 1 on November 19, 2019. See Dkt. 1 (23-CR-37).!! Counts
1 and 2 allege that Gerace and others acted to prevent the testimony of Witness 1
in, and to induce Witness 1 to withhold information from, “a federal grand jury
investigation and subsequent proceedings involving... [Gerace] ...1in the United
States District Court for the Western District of New York.” Id. at 1,2. Count 3
alleges that Gerace and others acted to “hinder. delay, and prevent communication
[by Witness 1] to a law enforcement officer and judge of the United States of
information relating to the commission and possible commission of a federal
offense.” Id. at 2. Count 4 alleges that, also on November 19, 2019, Gerace
possessed with intent to distribute, and distributed, cocaine. Id. at 3.

The offenses charged in the 23-CR-37 indictment could have been joined with
the charges in the 19-CR-227 second superseding indictment. The conduct alleged
in the 23-CR-37 indictment occurred less than three weeks after the grand jury
returned the original indictment in 19-CR-227, and less than two weeks after that
indictment was unsealed. See Dkt. 1; Dkt. 5; Dkt. 1 (23-CR-37). The grand jury
later returned a superseding indictment in 19-CR-227, and the Government states
that Witness 1 testified in front of the grand jury related to that indictment. The
conduct alleged in the 23-CR-37 indictment occurred during the timeframe Witness

1 participated in the grand jury investigation. Ultimatcly, the second superseding

'4 The three witness tampering charges appear to stem from the same alleged
conduct—essentially, charging Gerace under different theories based on one alleged
incident involving one witness. See id. at 2.

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indictment in 19-CR-227 charged Gerace with numerous offenses related to bribery,
drug trafficking, and sex trafficking. The conduct alleged in 23-CR-37. therefore, is
part of acommon scheme or plan with that alleged in the second superseding
indictment in 19-CR-227, and consolidation complies with Rule 8(a). See, eg.,
United States v. Montgomery, 358 F. App’x 622, 627—28 (6th Cir. 2009) (indictment
charging witness tampering properly consolidated for trial with indictment charging
drug distribution and conspiracy).

The allegations and charges in the 23-CR-37 indictment also are part of the
same series of acts or transactions alleged in the 19-CR-227 second superseding
indictment. In particular, the witness tampering charges allege that Gerace and
others acted to hinder and dissuade Witness 1 from participating in a federal grand
jury investigation—specifically, the investigation into conduct by Gerace,
Bongiovanni, and others, which ultimately resulted in the second superseding
indictment against both Defendants in 19-CR-227. The Court already concluded
that the second superseding indictment properly joined Bongiovanni and Gerace.
See supra Sections I.B.1.i, I.B.2.i. For those reasons, and the reasons mentioned
here, consolidation of indictments for trial complies with Rule 8(b).

Nor will consolidation of the indictments for trial result in substantial
prejudice to either Defendant under Rule 14(a).

Gerace argues, in conclusory fashion, that he likely would testify on his own

behalf in defense of the witness tampering charges but may not wish to do so as to

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the charges in 19-CR-227. This unspecific intent to testify does not establish
prejudice. See supra Section I.B.1.ii.

Bongiovanni argues that consolidation of indictments would heighten the
prejudice he would experience from a joint trial of him and Gerace on the 19-CR-227
charges. The Court identifies nothing about the witness tampering and drug
distribution charges against Gerace in 23-CR-37 to alter its conclusion that a joint
trial with the 19-CR-227 charges will not create substantial prejudice to
Bongiovanni. See supra Section I.B.1.ii.

Moreover, the witness tampering charges against Gerace in 23-CR-37 are
similar in nature to the obstruction of justice charges against Bongiovanni in 19-
CR-227. See, e.g., Dkt. 89, at 34. And the drug distribution charge against Gerace
in 23-CR-37 is similar in nature to the drug conspiracy charge against Gerace and
Bongiovanni in 19-CR-227. See id. at 31. Because Defendants are charged with
offenses of a similar nature in 19-CR-227, consolidation of the 23-CR-27 charges
with the 19-CR-227 charges for trial will not create substantial prejudice to either
Defendant.

Finally, the Court notes that alleged evidence related to the conduct of
Gerace and others in 23-CR-37 would be admissible in a trial that only included the
charges in the 19-CR-227 because such evidence would relate to, among other
things, Gerace’s consciousness of guilt. Bongiovanni is not alleged to have
participated in the conduct charged in 23-CR-37, and is free to elicit testimony to

that effect—on cross-examination or otherwise. Again, the Court will give limiting

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instructions, as appropriate and if requested, as to any evidence admissible as to
Gerace only.

For these reasons, and after considering the other factors identified in Gallo,
668 F. Supp. at 749, as appropriate, consolidation for trial of the indictment in 23-
CR-37 with the second superseding indictment in 19-CR-227 complies with Federal
Rules of Criminal Procedure 13 and 14. The Court, therefore, grants the

Government’s motion.

CONCLUSION

For the reasons above: (1) severance is not appropriate here; and (2) the
Court GRANTS the Government’s motion to consolidate for trial the indictment in
23-CR-37 with the second superseding indictment in 19-CR-227 (Dkt. 411 (19-CR-
227); Dkt. 11 (23-CR-37)).

The Pretrial Order (Dkt. 325), as modified (Dkt. 439), and all other
appropriate documents in case number 19-CR-227, shall apply equally to 23-CR-37.

All future docketing in case number 19-CR-227 and case number 23-

CR-37 shall be entered on the 19-CR-227 docket. All future filings shall

include both captions, as set forth on page one of this Decision and Order.
SO ORDERED.

Dated: April 28, 2023
Buffalo, New York

a

i ‘a __ _ ji ‘ te ee
JOHN L. SINATRA, JR. C a
UNITED STATES DISTRICT JUDGE

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