Annoyed and alarmed by a defense lawyer’s public comments, prosecutors have asked a federal judge for a gag order in a high-profile bribery, sex- and drug-trafficking case.
The government called the gag order necessary, saying that Steven M. Cohen, the lawyer for Peter Gerace Jr., the owner of Pharaoh’s Gentlemen’s Club in Cheektowaga, keeps making comments to the local media “in order to denigrate witnesses, potentially pollute the jury pool, and to otherwise try this case through the media,” according to the motion filed Tuesday.
“Gerace’s counsel has, almost from the inception of this case, been on a campaign to try this case through the media and has repeatedly made critical comments about witnesses, the judiciary, evidence and prosecutors,” according to the prosecution’s court filing.
“This case should be tried in court and not devolve into a carnival-like atmosphere,” prosecutors said in their court filing, accusing Cohen of trying to use media coverage to garner public support for Gerace.
Federal authorities have accused Gerace of bribing Joseph Bongiovanni, at the time a Drug Enforcement Administration agent, and conspiring to engage in drug trafficking and human trafficking at Pharaoh’s. Prosecutors have charged the now-retired Bongiovanni with accepting $250,000 in bribes from drug dealers and providing them with information about investigations and cooperating sources.
Cohen was not available to comment Wednesday morning.
The request comes amid upheaval in the case.
Last week, U.S. District Judge John L. Sinatra Jr. removed himself from the case less than two months before the scheduled start of the trial. Sinatra said two names on Gerace’s witness list required his recusal, “even in the absence of any bias, prejudice or partiality.” The case has been reassigned to U.S. District Judge Lawrence Vilardo, who is scheduled to hold a status conference on Friday.
Earlier this week, another of Gerace’s lawyers asked to withdraw from the case.
Attorney Eric Soehnlein said he reviewed the New York State Rules of Professional Conduct and the Federal Rules of Criminal and Civil Procedure.
“Based upon that review, I believe that good cause exists for my withdrawal,” he said in a public court filing, without explaining his reason.
He said he submitted a memorandum of law to the court to provide additional information, but that is not public. There has been no ruling on Soehnlein’s request.
Another change to Gerace’s defense team also might happen, depending on the outcome of another motion from prosecutors.
This week, the U.S. Attorney’s Office filed an affidavit, under seal, asking the court for an inquiry to determine whether a conflict of interest exists in Cohen’s representation of Gerace. If the judge finds a conflict exists, and it is not one the court would allow Gerace to waive, Cohen would be off the case.
The government called the request for a gag order “narrowly tailored” to protect witness safety and the integrity of the trial while ensuring protection of the defendants’ and counsel’s right to free speech.
The government wants the judge to prevent counsel from commenting on witnesses, testimony, evidentiary rulings and court decisions.
A gag order would not restrain the media’s ability to cover the case or report upon events occurring in court or in filings, prosecutors said.
“Given Mr. Cohen’s history of lambasting prospective government witnesses before trial has even begun, the government is concerned about the chilling effect similar comments may have if directed at other witnesses, particularly those who are unrepresented,” according to the prosecutors. “If defense counsel is permitted to spin a witness’s testimony in the press and accuse that witness of lying, there is serious potential that other witnesses will decide not to show up to trial or testify truthfully out of fear that they will be portrayed as liars who are responsible for Gerace’s plight.”
In their request for a gag order, prosecutors cited a dozen news articles – all but one published by The Buffalo News.
In them, according to prosecutors, Cohen has made outlandish and inaccurate comments that:
Questioned the impartiality of Sinatra.
Besmirched government witnesses.
Falsely described the discovery produced or made available by the government.
Improperly attacked the motives and reputation of government counsel.
Offered critical commentary about adverse decisions and rulings.
In public remarks, Cohen has been critical of Sinatra over some of his rulings.
Earlier this month, when Sinatra ordered Gerace to remain in pretrial custody, Cohen said, “This judge continues to be particularly harsh to Mr. Gerace, and we see no legitimate basis for that.”
In May, when Sinatra ruled he would not suppress evidence seized during the 2019 searches of Gerace’s home and Pharaoh’s, Cohen said, “The government is doing everything in its power to prevent Gerace’s defense from preparing our client for trial. Regrettably, they have found a sympathetic judge who has ordered all these restrictions.“
In particular, Cohen has publicly identified and attempted to discredit Gerace’s former wife Katrina L. Gerace, also known as Katrina Nigro, whom the defense has long expected to be a government witness against Gerace, according to the prosecution’s court filing requesting the gag order.
In a March 2022 Buffalo News article, Cohen said of her: “A disgruntled and disturbed ex-wife has been casting aspersions against some very fine people. Regrettably, a naïve assistant U.S. attorney has swallowed everything this woman says hook, line and sinker.”
Assistant U.S. Attorney Joseph Tripi is among the prosecution team that submitted the request for a gag order, and Cohen has singled him out in public comments.
“Mr. Tripi continues to say my client is a danger,” Cohen told The Buffalo News earlier this year. “He hasn’t been able to point to a single instance where my client has threatened anyone directly or indirectly.”
Earlier this month, referring to Tripi, Cohen told the newspaper that “the assistant United States attorney continues to make allegations and propound innuendo, no evidence. We look forward to a trial before impartial jurors so that our client can be acquitted and finally move beyond these baseless allegations. There seems to be no depths to which he will not plunge to attack Mr. Gerace.”
