Jury convicts Bongiovanni of lying and obstructing justice but deadlocks on bribery counts

Jurors acquitted him of deleting data on his DEA-issued cellphone when he retired.

Jurors could not reach a verdict on 12 other charges, including that he allegedly protected members of the Ron Serio drug-trafficking organization from arrest and alerted them of informants as well as other counts involving Peter Gerace Jr., the owner of Pharaoh’s Gentlemen’s Club near the airport, who himself is expected to face trial later this year on charges that include bribery, drug trafficking and sex trafficking.

U.S. District Judge Lawrence J. Vilardo declared a mistrial on the 12 charges the jurors deadlocked on.

A federal grand jury had indicted Bongiovanni in 2019 on charges of accepting at least $250,000 in bribes from Serio, whose organization included Michael Masecchia, who, according to prosecutors, Bongiovanni thought was associated with Italian organized crime.

"This is a fantastic verdict," said defense attorney Robert Singer, who with attorney Parker MacKay represented Bongiovanni during the eight-week trial.

"After five years, all the jurors could agree on after hearing the government's proof was that he took a DEA file home with him," MacKay said.

The obstruction of justice count for storing a working file of a DEA case at his home carries a maximum prison term of 20 years, although such a stiff sentence is considered unlikely.

The count of making a false statement to an agency of the U.S. carries a maximum prison term of 8 years.

After the verdicts, a smiling Bongiovanni hugged family members and friends but did not comment coming out of the courtroom.

The judge denied the government's request to put Bongiovanni in custody but did require the defendant to resume wearing an ankle monitor.

Prosecutors declined comment as they exited the downtown Buffalo courthouse.

The federal judge presiding over the case on early Friday afternoon said "deliberations are done" in the bribery and corruption trial after receiving a note from a juror who complained she was called names by other jurors.

"From the very first vote taken in this room, I was told I have no common sense and have been called stupid on multiple occasions," the juror wrote in a note to the judge.

The juror said the note was not reviewed by other jurors.

"The difference in our opinions has not been something that several people are willing to discuss in a reasonable and mature way," the juror added.

The juror said comments from other jurors included, "You are thinking too much," and "I knew he was guilty from day one."

Another comment the juror heard was, "You have to prove to me he is innocent."

Singer urged the judge to declare a mistrial, calling it the "only appropriate remedy."  

Based on the juror's note, it appears the jury room had become "caustic," Singer said.

The juror's note came not even an hour after Friday's first jury note – from the entire jury – that said it had become "apparent we will not be able to reach a unanimous decision" on all the charges against Bongiovanni.

After that first note, Vilardo, over the objection of Bongiovanni's defense lawyers, read the jury instructions known as an “Allen charge” – encouraging deadlocked jurors to make another effort to reach an unanimous decision in the trial that started eight weeks ago.

But that effort didn't last long – "less than 20 minutes," Vilardo said. 

The former Drug Enforcement Administration agent faced 15 felony charges, including accepting bribes, shielding drug traffickers and lying to investigators.

Vilardo told the prosecution and defense that he would not send jurors back to deliberate but planned to ask the jury if it had reached a partial verdict. Before Vilardo knew if jurors had done so, he indicated he would accept that partial verdict.

If jurors had not reached even a partial verdict, Vilardo said he would not send them back to the jury room to arrive at one. That would mean a mistrial, and the government would have to retry the case, if it chose to do so.

Prosecutors indicated they favored learning the partial verdict.

The defense opposed allowing the jury to announce a partial verdict, with Singer adding there is "no other way to go other than to declare a mistrial" on all of the charges.

Given the juror's note describing the acrimony, "what's the validity of that verdict?" Singer asked Vilardo, before knowing what the verdict would be.

Prosecutors inferred from an earlier juror note that jurors had reached a verdict on some counts.

Assistant U.S. Attorney Joseph Tripi said it was important not to "speculate on what's happening in deliberations."

"You don't get into the mind of the deliberating jury," Tripi said.

Assistant U.S. Attorney Nicholas Cooper pointed out that jurors in previous notes asked for a readback and for clarification of jury instructions, indicating "substantive deliberation."

Before the sole juror's note, the jury had twice said it could not reach a unanimous decision on all 15 counts.

Friday marked the sixth day of jury deliberations.

A week ago, a jury note said there was a “general consensus” that a single juror was being “unduly” in relation to deliberations, but the wording in the message didn’t complete the phrase. Defense attorneys Singer and Parker MacKay moved for a mistrial on Tuesday, but the judge rejected their request.

In their first note, jurors said they understood "the magnitude" of their message. 

"No one expects absolute certainty in a trial," Vilardo told the jurors.

Earlier Friday, Vilardo reminded the jurors that it was their duty to decide the case, but not to feel pressured or hurried to return a verdict. The judge told them to consider the views of fellow jurors they disagree with, keeping "an open mind and proper regard and deference to other jurors" without surrendering their own judgment and conscience.

MacKay objected to the Allen charge, calling it "coercive" because of the possibility jurors would surrender their legitimate doubt because of what the judge told them.

After the note from the individual juror, Singer said the juror who is being disruptive with rude and caustic comments needed to be removed from the jury.

"That person needs to be removed," Singer told the judge. "The name caller in the room – I don't know what side they're on – needs to be removed."

Vilardo said he was ending deliberations, so the jurors would not resume deliberations, making Singer's request moot.

The charges

For six weeks, prosecutors called witness after witness – 70 in all – during the high-profile trial seeking to convict Bongiovanni, a retired DEA agent. 

The 15 charges against Bongiovanni related to how he allegedly protected members of the Serio drug-trafficking organization from arrest, and other counts involve Gerace, the owner of the Pharaoh’s strip club.

Bongiovanni was accused of accepting at least $250,000 in bribes from Serio's organization. 

If convicted, the bribery, conspiracy and obstruction of justice counts could have put the 59-year-old Bongiovanni in prison for anywhere between decades and life.

Key witnesses against Bongiovanni include Gerace's ex-wife, Katrina Nigro, who testified she twice gave Bongiovanni an envelop stuffed with cash at  Pharaoh's strip club, and Louis Selva, Bongiovanni's long-time friend and best man at his wedding, who testified he persuaded Bongiovanni to accept payments in return for protecting him and others in the Serio drug trafficking operation.  

Bongiovanni did not testify, but his wife and mother did. They said that $54,000 in cash for monthly rent payments that Bongiovanni's parents paid to him would explain away most of the $77,000 in unexplained cash deposits to Bongiovanni's bank account that prosecutors called evidence of bribes.  

Jurors could not reach a verdict on these counts:

• Conspiracy to defraud the U.S.: From 2008 until 2019, Bongiovanni allegedly used his position as a DEA special agent to shield the Serio organization from investigations, including marijuana trafficker Michael Masecchia, who he believed to be connected to Italian organized crime.
• Conspiracy to defraud the U.S.: From 2005 until 2019, Bongiovanni allegedly protected Gerace and his business, Pharaoh’s Gentlemen’s Club, from federal narcotics investigations and sought to dissuade other law enforcement agencies from investigating him. 
• Conspiracy to distribute controlled substances: By allegedly providing information to Serio and Masecchia, Bongiovanni became part of their drug conspiracy. 
• Public official accepting a bribe: Bongiovanni was allegedly paid at least $250,000 by Serio to provide information about federal investigations, identify informants and mislead other members of law enforcement to keep them from investigating Serio’s drug-trafficking organization. 
• Public official accepting a bribe: Bongiovanni was allegedly paid an undetermined amount by Gerace to help him and his Pharaoh’s Gentlemen’s Club avoid federal narcotics investigations and induce the FBI to abandon an investigation.
• Conspiracy to distribute controlled substances: By shielding Gerace from investigation, Bongiovanni helped Pharaoh’s become a drug-involved premises where cocaine, marijuana and other drugs were used and distributed. 
• Obstruction of justice: Bongiovanni allegedly prepared a false DEA report on Nov. 4, 2014, that said a confidential informant who offered to infiltrate the Serio drug-trafficking organization was no longer viable and could not provide credible information to further the Serio investigation. Prosecutors allege Bongiovanni feigned an investigation into Serio and handled the informant in a way that shielded Serio from investigation. 
• Obstruction of justice: On Jan. 28, 2015, Bongiovanni allegedly made a false statement in a DEA report as he closed the Serio investigation, writing that one of the targets in the investigation had pleaded guilty in New York State court and was sentenced to 36 months probation. 
• Obstruction of justice: Bongiovanni allegedly in a November 2018 internal DEA memo said his past contact with Gerace consisted of minimal in-person or random telephonic communications based on the fact they were childhood friends. 
• Obstruction of justice: Bongiovanni submitted a Dec. 10, 2018, internal DEA memo that allegedly included a false and misleading statement: “I have and will report all contact with [the defendant Gerace] to a DEA supervisor like I have in the past.” The government discovered year after year of text messages between Gerace and Bongiovanni from 2015 to 2019, but no reports detailed the extent of those messages. 
• Obstruction of justice: Bongiovanni submitted a Jan. 28, 2019, internal DEA memo in which he allegedly falsely portrayed DEA Special Agent Anthony Casullo as the agent with the relationship with Gerace, because Casullo’s brother-in-law is friends with Gerace. 
• False statements to an agency of the U.S.: Among three alleged lies in this count, Bongiovanni falsely denied Gerace called him while a Pharaoh’s employee was actively overdosing at the club. 

Bongiovanni was found not guilty of:

• Obstruction of justice: When he retired, Bongiovanni deleted the contents of his DEA-issued cellphone intending to impede the federal investigation into his relationships with people involved in drug-trafficking activities. 

He was found guilty of:

• Obstruction of justice: Bongiovanni stored a working file of a DEA case at his home. 
• False statements to an agency of the U.S.: Among nine alleged lies in this count, Bongiovanni denied he was in a close relationship with Gerace.