Defense lawyers have asked for a short prison term, if any time in custody is required at all, for the first Drug Enforcement Administration agent in Western New York convicted of protecting drug traffickers.
"If the Court decides to impose a custodial sentence, then the Court should impose a one-year and one-day sentence," lawyers for Joseph Bongiovanni said in a sentencing memo Monday.
Complete coverage: The case of ex-DEA agent Joseph Bongiovanni
Given the "complicated case with an unclear verdict," U.S. District Judge Lawrence Vilardo should consider imposing a shorter custodial sentence than federal sentencing guidelines suggest or come up with punishments other than prison, said defense lawyers Parker MacKay and Robert Singer.
Their suggestion is far shorter than the eight to 10 years a presentence report suggests for Bongiovanni, and even shorter than the 15 years in prison prosecutors want for the retired federal agent.
Bongiovanni, 61, is scheduled to be sentenced Jan. 21.
Joseph Bongiovanni and his wife, Lindsay, walk out of the Robert H. Jackson U.S. Courthouse after he was found guilty on Oct. 10, 2024, of seven charges in a retrial.
A jury convicted him in October 2024 on seven of 11 charges in his two-month retrial, including conspiring to distribute drugs, making a false statement, conspiring to defraud the United States and obstruction of justice. The jury at the former federal agent’s first trial found Bongiovanni guilty on one count of obstruction of justice and one count of lying to federal agents, both counts involving a case file kept in his home after his retirement.
Ronald Serio, whose large-scale marijuana trafficking later branched into a federal bribery and corruption probe in the DEA’s Buffalo office, testified at Bongiovanni's trials that he paid the federal agent $2,000 and then $4,000 a month from 2010 to 2017, totaling at least $250,000 in bribes. Serio testified Bongiovanni would alert him about any investigations and informants that could jeopardize his drug organization. Serio said he had never met Bongiovanni in person but agreed to the scheme he said was put together by Michael Masecchia with help from Louis Selva – two longtime friends of Bongiovanni who were key members of the drug organization.
But jurors acquitted Bongiovanni of accepting bribes from Serio drug organization.
What's more, even though jurors convicted Bongiovanni of narcotics conspiracy, they found that the weight of marijuana that was “reasonably foreseeable” for Bongiovanni to know about was less than 110 pounds.
Had jurors believed Bongiovanni played a role in the thousands of pounds of marijuana that Serio sold across Western New York, they would have found that a much greater weight was proven in the conspiracy, Bongiovanni’s lawyers say.
Instead, the amount of marijuana jurors found was foreseeable to Bongiovanni was roughly the amount produced in the basement marijuana-grow operation by Selva, who testified against Bongiovanni at the two trials.
Jurors also acquitted the retired federal agent of three counts related to Peter Gerace Jr., the owner of Pharaoh’s Gentlemen’s Club in Cheektowaga, whom prosecutors said also gained Bongiovanni's protection.
"He is a person who, in the jury’s eyes, made a poor choice to try and protect his best friend Lou Selva, minimized his relationship with Peter Gerace, and filed inaccurate or misleading police reports and internal memos," his lawyers wrote in their sentencing memo. "These are not convictions worthy of substantial punishment."
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Bongiovanni has already suffered "substantial punishment" through six years of monitoring and home incarceration, they said.
Bongiovanni retired from the DEA in January 2019 after a 20-year career. With his previous service at the Erie County Sheriff’s Office, Bongiovanni devoted almost all of his adult life to serving and protecting the community, his lawyers said.
"Most people cannot say that," they said in their memo.
But Bongiovanni also carried a badge and took a federal agent's oath which is part of the reason the government is seeking such a harsh punishment.
During the trials, Assistant U.S. Attorney Joseph Tripi described Bongiovanni as torn between his job as a DEA agent and his loyalty to childhood friends, including Selva and Masecchia, who became drug traffickers.
Bongiovanni revealed law enforcement secrets, lied to other members of law enforcement, exposed three confidential informants, wrote false reports and coached a co-conspirator to lie to investigators, Tripi said.
Bongiovanni "placed lives in danger, betrayed public trust, and placed an indelible stain on law enforcement that makes it more difficult for honest and hard-working members of law enforcement who try to keep this community safe," Tripi said in his sentencing memo.
Bongiovanni's lawyers said the government failed to prove the sweeping conduct prosecutors alleged at his two trials.
"Over the course of several years, the government and others have levied some awful accusations about Joe Bongiovanni," MacKay and Singer said. "Unfit parent. Bribe-taker. Mob-lover. Racist. Failure. As the verdict made clear, these allegations were not believed."
"It can be safely said that the verdicts delivered in these two trials are not the sweeping victories the government claims they are, the lawyers said.
In his first trial, the jury could not reach a verdict on the bribery and corruption charges that formed the core of criminal indictment against him, they said.
The only thing the jury agreed on was that Bongiovanni did not “wipe” his DEA cellphone but did improperly remove the Serio “working file” from the office upon his retirement and then was not truthful with agents when questioned about his reason for doing so.
In his second trial, the jury acquitted Bongiovanni of taking bribes from Serio and conspiring to protect Gerace and Pharaoh’s Gentlemen’s Club, his lawyers said.
While the jury convicted Bongiovanni of conspiring to defraud the DEA and engaging in a narcotics conspiracy, it does not logically follow that the jury believed the full scope of the charges, given that the marijuana finding logically limits, to some degree, "what Bongiovanni could have foreseen, actually saw, or did," according to the defense memo.
The defense lawyers called the government’s request for a 15-year sentence "defective" because it seeks retribution for conduct that was not proven at trial and rejected by two juries.
"The inability – or unwillingness – of the government to acknowledge this fact has placed the government in a position where it is requesting a sentence that is not commensurate with the convictions," MacKay and Singer said. "Stated another way, prosecutors’ blind hatred for Mr. Bongiovanni drives the request."
