Second Motion For Reconsideration Of Detention

Date: 2021-02-25

Indictment — Second Motion For Reconsideration Of Detention, dated 2021-02-25.

Full text

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF NEW YORK
_______________________________________________

UNITED STATES OF AMERICA,

19-CR-227-JLS

JOSEPH BONGIOVANNI,
PETER GERACE, JR.,

Defendants.
_________________________________________________

UNITED STATES OF AMERICA,

23-CR-37-JLS-MJR

PETER GERACE, JR.,

Defendant
_________________________________________________

GOVERNMENT’S RESPONSE IN OPPOSITION OF THE DEFENDANT’S
SECOND MOTION FOR RECONSIDERATION OF DETENTION

THE UNITED STATES OF AMERICA, by and through its attorney, Trini E. Ross,
United States Attorney for the Western District of New York, Joseph M. Tripi, David J.
Rudroff, and Nicholas T. Cooper, Assistant United States Attorneys, Corey R. Amundson,
Chief, United States Department of Justice, Public Integrity Section, and Jordan Dickson,
Trial Attorney, United States Department of Justice, Public Integrity Section, of counsel,
hereby files this response in opposition to the defendant’s motion for reconsideration of
detention.

BACKGROUND AND PROCEDURAL HISTORY
On February 25, 2021, a Grand Jury sitting in the Western District of New York
returned an 18-count Second Superseding Indictment in case 19-CR-227-JLS. Defendant
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Gerace was charged in Counts 2, 6, 7, 8, and 9 of the Second Superseding Indictment as
follows: Count 2 charged defendant Gerace with Conspiracy to Defraud the United States;
Count 6 charged defendant Gerace with Paying a Bribe to a Public Official; Count 7 charged
defendant Gerace with Maintaining a Drug-Involved Premises; Count 8 charged defendant
Gerace with Conspiracy to Distribute Controlled Substances; and Count 9 charged defendant
Gerace with Conspiracy to Commit Sex Trafficking. See Dkt. 89. Generally, as a perusal of
the Second Superseding Indictment readily establishes, most of the conduct underlying the
charges relates to the defendant’s presence at, involvement in, and control of, Pharaoh’s
Gentlemen’s Club. The charges establish the defendant is presumed to be a flight risk and a
danger to the community.

On March 1, 2021, defendant Gerace was arrested in Florida during the COVID-19
pandemic. At an initial appearance in the Southern District of Florida on March 2, 2021,
where an attorney from the USAO-WDNY appeared remotely, defendant Gerace was
ordered released on various conditions recommended by the government.1 See Dkt. 93. ; see
also Transcript of Proceedings, March 2, 2021, attached hereto as Exhibit A. Notably, at the
March 2, 2021, appearance, U.S. Probation in the Southern District of Florida recommended
detention, and the defendant initially consented to the conditions of release requested by the
government, as follows:

1 This was due to issues related to the pandemic and government representations made to
Gerace’s prior counsel, Joel Daniels, Esq., regarding seeking conditions of release or moving
for detention.
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See Exhibit A at 22, lines 4-17. Magistrate Judge Valle further commented, in part, “Well,
this was an interesting case because, but for the government’s recommendation, this is a case
where I think detention would be warranted.” Id., at 25 (lines 3–5).)

On March 4, 2021, U.S. Probation provided an amended memorandum which
establishes that the defendant committed an additional crime the day of his arraignment in
Florida. In his original pre-trial services interview, the defendant stated that he had used
cocaine one and a half years ago. However, subsequently to his appearance before Magistrate
Judge Valle (and subsequently to the government finalizing its recommendation), U.S.
Probation learned that the defendant tested positive for cocaine. U.S. Probation Officer
Assistant Andre McCray’s March 4, 2021, Memorandum, which is attached hereto as Exhibit
B, provided an update in pertinent part:
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It is to be noted that the time of the defendant’s initial drug test conducted
in the Southern District of Florida, he tested positive for cocaine. Mr.
Gerace reported taking some pills at a social gathering but, did not report
cocaine use. At the time of the pretrial services interview, the defendant
reported a history of cocaine use, with his last date of use being
approximately one and a half years ago.

See Exhibit B, at 1 (emphasis in original). Accordingly, from the outset of this case, defendant
Gerace has lied to U.S. Probation.

United States District Court Judge John L. Sinatra, Jr. (“Judge Sinatra”), later reduced
the release conditions, over the government’s objection, on April 14, 2021, see Dkt. 112, and
again over the government’s objection, on January 19, 2023. See Dkt. 361.

On November 30, 2022, District Court Judge Sinatra set a date certain trial for June
21, 2023, and issued a Pre-Trial Order the same day. See Dkts. 324-325. The government
began providing voluminous Jencks Act materials in January 2023, after the entry of a
Protective Order. See Dkt. 347.

On March 23, 2023, a Grand Jury sitting in the Western District of New York returned
a four-count Indictment in case 23-CR-37. Defendant Gerace was charged in Counts 1
through 4 as follows: Count 1 charged defendant Gerace with Tampering with a Witness;
Count 2 charged defendant Gerace with Tampering with a Witness; Count 3 charged
defendant Gerace with Tampering with a Witness; and Count 4 charged defendant Gerace
with Distribution of Cocaine. See Dkt. 1, 23-CR-37-JLS.

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On March 24, 2023, defendant Gerace was arraigned on the 23-CR-37 Indictment,
and the government moved for detention. A detention hearing for defendant Gerace was held
and the government proceeded by proffer. After hearing the government’s proffer, the
defendant requested a continuance of the detention hearing. See Exhibit C – Transcript of
March 24, 2023, Detention Hearing. The detention hearing was continued on March 27,
2023. The Court ordered the defendant detained pending trial, finding that no condition or
combination of conditions w[ould] reasonably assure the safety of any other person and the
community. In particular, Judge Sinatra found:

I've heard everything I heard on Friday and today, all pursuant to the factors
in subsection G of 3142, 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 -- the counter way and stand in the face of that; and things like the new detail
that I've heard from Mr. Tripi 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. 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 the Michalski incident, also, as well as the [local
police department] detective incident that I heard about on Friday as well. The
cocaine and drug supplying and prostitution items aren't good facts either. The
loan application issues, at a minimum, present recent untrustworthy activity
from June, 2020 and July, 2021. Some of that activity after the releases 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, the LaFontaine case accounts for and speaks
to. Taking into account all of the 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 E-3. Nevertheless, I find by clear
and convincing evidence that no condition or combination of conditions will
reasonably assure the safety of any other person in the community, especially
vis-a-vis witnesses against Mr. Gerace. And I also note that the case law, for
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example, LaFontaine, about detention and witness tampering cases also
notes cases about detention and obstruction of justice cases, even absent
violence or threats of violence. Therefore, I order Mr. Gerace detained
pending trial.

See Transcript of Proceedings, March 27, 2023, at 33-34, attached hereto as Exhibit D
(emphasis added).

On March 28, 2023, the government filed its motion for joinder of the indictments, see
Dkt. 411, and on April 28, 2023, Judge Sinatra ordered that Indictment 23-CR-37 would be
consolidated with the Second Superseding Indictment 19-CR-227 for trial. See Dkt. 442.

On April 12, 2023, District Court Judge Sinatra denied defendant Gerace and
defendant Bongiovanni’s severance motions. See Dkt. 434.

On April 26, 2023, the government timely filed its Pre-Trial Memorandum and
Motions in Limine. See Dkt. 441. The government incorporates the information contained
in Dkt. 441 as part of its proffer of evidence in this case as though set forth fully herein.

On April 28, 2023, District Court Judge Sinatra issued a Decision and Order denying
severance and granting the government’s motion to consolidate Case Nos. 19-Cr-227 and 23-
CR-37 for trial.

On May 10, 2023, the government filed a motion to stay (see Doc. No. 456) provisions
of the Protective Order permitting dissemination of witness names, when it learned that
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counsel for defendant Bongiovanni intended to move to withdraw as counsel. The Court
granted the motion (see Dkt. 458).

On May 16, 2023, defendant Bongiovanni’s former attorney filed a motion to
withdraw as counsel due to health issues (see Dkt. 476), and on May 17, 2023, and District
Court Judge Sinatra granted defendant Bongiovanni’s former attorney’s motion to withdraw
and assigned new counsel to represent defendant Bongiovanni, set June 21, 2023, as the date
to argue certain motions, and rescheduled the trial for August 14, 2023. See Dkt. 484.

On May 22, 2023, the defendant submitted his Motion to Reopen the Detention
Hearing and for Pretrial Release, largely consisting of regurgitated arguments that previously
failed to sway the Court. See Dkts. 490-493.

On May 23, 2023, District Court Judge Sinatra issued an Amended Pre-Trial Order.
See Dkt. 489. Pursuant to the amended order, trial was scheduled for a date certain on August
14, 2023, and witness lists were due on June 16, 2023. Id. at 6.

On May 30, 2023, District Court Judge Sinatra issued a Decision and Order denying
defendant’s Gerace’s motion to suppress the results of search warrants and for a Franks
hearing. See Dkt. 496. That same day, on May 30, 2023, the government filed its response
to the defendant’s motion to reopen the detention hearing and for pretrial release. See Dkts.
497 [redacted version publicly filed], 498 [unredacted version filed under seal].

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On June 6, 2023, Judge Sinatra issued a Decision and Order (D&O) denying the
defendant’s motion to reopen the detention hearing. See Dkt. 504. In his D&O denying the
motion, Judge Sinatra properly held:

Also, on June 6, 2023, defendant Gerace moved for reconsideration of the decision
denying defendant Gerace's motion to suppress the results of the execution of search warrants
at defendant's home and business. See Dkt. 505. The Court directed the government to
respond by June 20, 2023. See Dkt. 508.

On June 7, 2023, defendant Gerace filed a motion to exclude a government expert (see
Dkt. 509), and Attorney Cohen filed a motion for reconsideration of denial of his motion to
file an untimely motion to suppress cell phone evidence stemming from a border search that
occurred in April of 2019. See Dkt. 510. Government responses were due June 20, 2023. See
Dkts. 508, 512.
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On June 8, 2023, Gerace was indicted and charged with four counts of wire fraud
relating to an Economic Injury Disaster Loan (EIDL) that he obtained while on pre-trial
release. See Case No. 23-CR-60. The allegations set forth in Case No. 23-CR-60 establish
that the defendant committed parts of a $2,000,000 Economic Injury Disaster Loan (EIDL)
wire fraud while under pre-trial release conditions, and under the supervision of the U.S.
Probation Office, in Case No. 19-CR-227. See Indictment, Case No. 23-CR-60-JLS attached
as Exhibit E. The Indictment in Case No. 23-CR-60-JLS also provides for increased penalties
because the defendant committed the criminal conduct while on release, as follows:

Notably, the Indictment in Case No. 23-CR-60 is a changed circumstance, but one that
strongly favors detention. At the time of the detention hearing on March 24 and 27, 2023,
the EIDL Loan Fraud was only proffered information. Since that time, a Federal Grand Jury
has returned a four-count indictment. Accordingly, in addition to the potential life sentence
the defendant faces in Case Nos. 19-CR-227 and 23-CR-37, the defendant faces an additional
46 to 57 months imprisonment on Case No. 23-CR-60, plus an additional mandatory sentence
of up to 10 years consecutive to any sentence imposed on this conviction pursuant to 18
U.S.C. § 3147.
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On June 9, 2023, defendant Gerace filed a motion to dismiss the indictment. See Dkt.
515.

On June 16, 2023, after suffering a string of adverse ruling by Judge Sinatra, and after
Gerace’s attorney openly questioned Judge Sinatra’s integrity in the media, defendant Gerace
filed a witness list with over 200 names, and included names of two individuals that triggered
a mandatory recusal of Judge Sinatra. In particular, this followed public comments by
defendant Gerace’s attorney the Buffalo News on June 6, 2023, “This judge continues to be
particularly harsh to Mr. Gerace, and we see no legitimate basis for that,” and “[h]e appears
to accept whatever the prosecution says at face value, even though they are bare allegations
not supported by evidence.” See, Lakamp, Patrick, The Buffalo News, June 6, 2023,
<https://buffalonews.com/news/local/judge-refuses-to-release-strip-club-owner-ahead-of-
bribery-sex--and-drug-trafficking/article_3fd18366-0475-11ee-a8d3-5fb60c07e3c4.html>

On June 21, 2023, Judge Sinatra issued a Text Order recusing himself, as follows:
“Given Defendant Peter Gerace, Jr.'s inclusion of two individuals as supposed character
witnesses among the hundreds of individuals on his witness list, recusal even in the absence
of any bias, prejudice, or partiality is now required under 28 U.S.C. 455(b)(5)(iv). The
undersigned is hereby recused. These cases (19-CR-227 and 23-CR-37), which have been
joined for trial, will be reassigned to another District Judge for all further proceedings. SO
ORDERED.” See Dkt. 535 (emphasis added).

On June 30, 2023, the parties appeared before this Court and another set-in stone trial
date was set for October 23, 2023. See Dkt. 546. During this appearance, Attorney Cohen
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convinced this Court not to set the September 25, 2023, trial date the Court had selected, and
trial was scheduled for October 23, 2023, notwithstanding the fact that, even with an August
14, 2023, trial date Attorney Cohen was committed to, the trial would have still been
underway into October 2023. See Transcript of Proceedings, June 30, 2023. This was the
third set in stone trial date involving over 200 government witnesses.

On July 15, 2023, defense counsel indicated that he has been terminated. See Dkt. 567.

On July 19, 2023, the parties appeared for a status conference related to Gerace’s
“termination letter.” During the appearance, Attorney Cohen stated “[H]e has fired me for
what he perceives to be my failure to follow through on instructions he has given me. I do
not intend to allow my trial strategy to be controlled by a client.” See Transcript of
Proceedings, on July 19, 2023 (“Tr. 07/19/2023””), at 3. Also, Attorney Cohen stated for
the for the first time, that Gerace’s “dissatisfaction with me goes back for a long time.” Id.
Later during the July 19, 2023, appearance Attorney Cohen made additional comments
suggesting that tactics may be involved. In particular, he stated:
a.
That granting defendant Gerace’s motion to reconsider District Court
Judge Sinatra’s denial of Gerace’s untimely motion seeking to suppress
cell phone evidence “may dispose of this…we may not even have a
problem if Your Honor considers that.” Tr. 07/19/2023, at 13. This
statement suggests that Gerace and/or Attorney Cohen are attempting
to goad the Court into reversing District Court Judge Sinatra’s prior
decision (see Doc. Nos. 330 and 368) or risk adjourning this lengthy and
complex trial for a fourth time. These statements and circumstances
may appropriately lead the Court to conclude that defendant Gerace is
trying to force the Court’s hand akin to stating, “either reverse District
Court Judge Sinatra’s decision, or I am firing my lawyer and causing
another delay in this trial.”

b.
That “he’s not asking for this, but if the Court pushed this [trial] off later
on, maybe that could remove the time conflicts,” such that other
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attorneys will accept Gerace’s case and get ready for the trial. Tr.
07/19/2023, at 15. Here, the defense implicitly requested an
adjournment of the trial on one hand, while claiming they want a speedy
trial on the other hand (i.e., “The record is crystal clear, Judge, that we
objected to the adjournment even when Mr. Harrington took ill and had
to withdraw, we objected to an adjournment of the trial (see Tr.
07/19/2023, at 10).”). While Judge Sinatra previously rejected defense
arguments that defendant Gerace’s pre-trial incarceration merits release,
See Dkts. 491, 491-1, 497, 498, 504, the defense already started to lay
the groundwork for revisiting the issue of pre-trial detention when
Attorney Cohen stated, “Mr. Gerace has communicated to me that he's
been having a hard time trying to arrange for new counsel while he's
locked up. The facilities there just -- he doesn't have access to a computer
to search for lawyers, and he's going by other inmates who are there as
to who might be a good lawyer. He just wanted Your Honor to know
that.” See Tr. 07/19/2023, at 22-23.

On July 28, 2023, the government filed an affidavit in opposition of withdrawal of
defense counsel (awaiting docketing), and on August 3, 2023, the government filed a
supplemental affidavit in opposition of withdrawal of defense counsel or alternatively to
require any new counsel to be ready for trial on October 23,2023 (awaiting docketing).

On August 8, 2023, defendant Gerace filed a sealed motion for reconsideration of
detention (awaiting docketing). See August 8, 2023, Memorandum of Law at 4
(acknowledging the defendant’s motion is one seeking reconsideration). This response
ensues.

THE GOVERNING LAW

As this Court has recently acknowledged, the “standard for a motion for
reconsideration is strict, and courts generally will deny a motion for reconsideration unless
the moving party can point to controlling decisions or data that the court overlooked—
matters, in other words, that might reasonably by expected to alter the conclusion reached by
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the court.” See Decisions and Order (“D&O”), Dkt. 576 at 2 (citing Shrader v. CSX Transp.
Inc., 70 F.3d 255, 257 (2d Cir. 1995) (punctation omitted). Reconsideration of a prior decision
is generally only justified in one of the following three circumstances: (1) an intervening
change in controlling law; (2) new evidence; or (3) the need to correct a clear error of law to
prevent manifest injustice. Virgin Atl. Airways, Ltd. v. Nat’l Mediation Bd., 956 F.2d 1245, 1255
(2d Cir. 1992). Reconsideration should be denied when a movant “seeks solely to relitigate
an issue already decided.” Shrader, 70 F.3d at 257. The standard for granting a motion for
reconsideration does not change simply because a case has been reassigned to a different
judge. See Dkt. 576 at 3 (citing Arons v. Lalime, 3 F. Supp. 2d 328, 330 (W.D.N.Y. 1998).

The Second Circuit has made clear that, when a finding of dangerousness is related to
violent conduct, it need not be shown that the defendant personally engaged in the violence.
United States v. Colombo, 777 F.2d 96, 98 (2d Cir. 1985); see also United States v. Salerno, 481
U.S. 739, 744 (1987) (“The activities of a criminal organization […] do not cease with the
arrest of its principals and their release on even the most stringent of bail conditions.”). As in
this case, the government may proceed by proffer. “It is well established in this circuit that
proffers are permissible both in the bail determination and bail revocation contexts.” United
States v. LaFontaine, 210 F.3d 125, 131 (2d Cir. 2000). The Second Circuit has held that
witness tampering is a crime that threatens the integrity of the trial process and supports a
finding that a defendant is a danger to the community. Id. (collecting cases).

STATEMENT OF FACTS: TIMELINE OF MAJOR EVENTS

As set forth in the government’s prior arguments and filings in support of detention,
the facts of these case, coupled with the defendant’s history and characteristics, fully justify
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Judge Sinatra’s decision to detain the defendant pending trial based upon his dangerousness.
The following timeline applies to the facts of this case:

April 2019:

July 2019:

October 17, 2019:

October 31: 2019:
Indictment 19-CR-227 was returned charging Bongiovanni, and
it referenced Gerace as Coconspirator 1.

November 19, 2019:
Gerace and others
sent
threatening messages to
. Witness 2 sent the
messages to
using
’s phone and Facebook
account.

December 12, 2019:
Law enforcement executed federal search warrants at PGC and
Gerace’s residence.

October 12, 2020:
Gerace sued
in state court. The
government filed for an injunction of this lawsuit, which was
granted by Judge Sinatra. The Second Circuit affirmed Judge
Sinatra’s decision on May 26, 2023, and stated, in part, the
following:

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See Mandate, Case No. 21-2419, Document 138 at 4-5. The Second Circuit continued, “Here,
the potential interests of the government are considerable, whereas the potential prejudice
faced by Gerace is de minimis. Indeed, this is exactly the type of case—where a criminal
enterprise thrives off of gathering and using confidential law enforcement intelligence—
that merits the relief granted by the district court.” Id. at 5 (emphasis added).

December 3, 2020:

March 4, 2021:

January 19, 2023:

January 24, 2023:

2 A copy of the agent’s report documenting this interview was provided to the defense as part
of 3500 materials on March 24, 2023.

3 A copy of this grand jury transcript was provided to the defense as part of 3500 material on
March 24, 2023.

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February 3, 2023:
Witness 2 was charged via sealed Criminal Complaint

with three counts of witness tampering based upon the events of
November 19, 2019, and with one count of false statements due
to statements made to the FBI on January 24, 2023.

February 8, 2023:
Criminal Complaint
was unsealed and available on
Pacer. The Second Superseding Indictment charging Gerace
and Bongiovanni was attached as Exhibit A of Criminal
Complaint
. Conditions of release were set by United
States Magistrate Judge H. Kenneth Schroeder Jr., and available
on Pacer.4

February 16, 2023:
Witness 2 appeared and proffered with the government.5
Witness 2’s attorney provided the text messages to the
government wherein Gerace’s attorney asked another attorney
to reach out to Witness 2, in pertinent part as follows:

4 A copy of the criminal complaint was provided in discovery to the defense as part of
discovery on April 11, 2023. It was available publicly on Pacer since February 8, 2023.

5 A copy of this proffer report was provided to the defense on May 26, 2023, with 3500
material disclosures.

6 Witness 2 indicated that she has safety concerns being a witness/cooperator in this case. A
copy of the messages was provided to the defense in discovery on April 11, 2023.

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February 23, 2023:

February 27, 2023:

March 3, 2023:
The government filed a motion with affidavit under seal
requesting that United States Magistrate Judge H. Kenneth
Schroeder, Jr., set a Rule 48(b) dismissal date because his normal
practice is to not set such dates. Magistrate Judge Schroeder
issued a Text Order: “For the reasons set forth in the affidavit
under seal, the Criminal Complaint shall be deemed dismissed
without prejudice pursuant to Rule 48(b) […] effective
4/9/2023.”

March 7, 2023:

March 9, 2023:

March 14, 2023:
Witness 2 contacted the FBI at the advice of her attorney to
report that rats had been thrown on her [mother’s] car and her
roommate’s car. The FBI conducted follow-up interviews and
responded to the location and observed the dead rat. Witness 2
reported that she was very scared after discovery of the second
rat.11

7 A copy of this proffer report was provided to the defense on May 26, 2023, with 3500
material disclosures.

8 A copy of this proffer report was provided to the defense on May 26, 2023, with 3500
material disclosures.

9 A copy of this proffer report was provided to the defense on May 26, 2023, with 3500
material disclosures.

10 A copy of this transcript was provided to the defense on April 11, 2023.

11 A redacted copy of this FBI report was provided and attached as an exhibit on June 5, 2023,
see Dkt. 503-1 (sealed), Exhibit A.

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March 21, 2023:
Witness 2 texted the FBI agent, in part, that she was scared and
that she believed her dog had been assaulted.12

March 21, 2023:
The FBI canvassed several pet stores and confirmed that pet
stores do not sell rats that look like the rats that were left at
Witness 1’s house [on her mother and roommate’s vehicles].13

March 23, 2023:
A Grand Jury in the Western District of New York returned an
indictment charging Gerace with four counts related to witness
tampering and drug distribution. See Case No. 23-CR-37, Dkt.
1.

March 27, 2023:
Judge Sinatra detained Gerace. See Case No. 23-CR37, Dkt. 8.

March 28, 2023:
The FBI interviewed a witness to the discovery of the dead rats
and stated, in pertinent part, that Witness 2 “looked like she had
seen a ghost,” and was “pretty shook up” about the rats. Witness

12 A redacted copy of this FBI report was provided and attached as an exhibit on June 5, 2023,
see Dkt. 503-1 (sealed), Exhibit B.

13 A copy of this FBI report was provided and attached as an exhibit on June 5, 2023, see Dkt.
503-1 (sealed), Exhibit C.

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2 stated that it could be because she was “talking with the FBI.”14
April 3, 2023:
Witness 2 entered a Pre-Trial Diversion agreement with the
United States Attorney’s Office and the United States Probation
Office. That same day, Witness 2 executed a formal cooperation
agreement with the United States Attorney’s Office.

On April 6, 2023:
United States Magistrate Judge H. Kenneth Schroeder, Jr.,
signed an Order of Dismissal, and dismissed Witness 2’s
criminal complaint pursuant to Rule 48(a) of the Federal Rules
of Criminal Procedure. See
, Doc. No. 8.
Anyone with access to Pacer could have accessed Witness 2’s
docket and observed that her complaint was dismissed.

May 10, 2023:
The United States Attorney’s Office filed its witness list, under
seal and pursuant to a protective order, in case number 19-CR-
227 and 23-CR-37, listing Witness 2 as a government witness for
trial. Under the terms of the protective order, Gerace’s attorney
was not permitted to share the names of government witnesses
with Gerace. That same day, the United States Attorney’s Office
provided Gerace’s attorney with Witness 2’s proffer statements
as 3500 material/Jencks Act Material. The protective order in
place did not permit Gerace access to that material however, as
set forth above, Witness 2’s cooperation was evident based upon
the detention hearings that culminated in Gerace’s pretrial
detention on March 27, 2023.

May 30, 2023:
During Oral Argument on the defendant’s first motion for
reconsideration of detention (see Dkt. 491), Judge Sinatra
observed regarding the dead rats, in part: “I think it's probably
not a random thing. So we either have Mr. Gerace is involved
and knew about it or he didn't or you've got somebody who is
acting on his own or her own, right? […] I can't look at it in a
vacuum, Mr. Soehnlein. Don't I need to look at what the
Government is telling me by way of proffer against the backdrop
of everything else I'm hearing in terms of the charged conduct in
the 23 indictment, in connection with the outreach from some
lawyer to this individual, etcetera? Don't I look at all these facts
together? See Tr. 05/31/23 at 21-22.

June 6, 2023:
Judge
Sinatra
denied
defendant
Gerace’s
motion
for
reconsideration of detention. See Dkt. 504.

14 A redacted copy of this FBI report was provided and attached as an exhibit on June 5, 2023,
see Dkt. 503-1 (sealed), Exhibit D.
Case 1:19-cr-00227-LJV-MJR Document 591 Filed 08/11/23 Page 19 of 212

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July 7, 202315:
The government received information from a witness who
provided the following information:

August 2, 2023:
Witness 2 was found dead.

ARGUMENT
The defendant’s motion, which simply regurgitates past arguments previously rejected,
does not meet the strict threshold required on a motion for reconsideration. Contrary to
defense claims, there was no information that Judge Sinatra overlooked or undervalued in
reaching its sound conclusion that the defendant should be detained. Since defendant Gerace

15 This is new information since the time Judge Sinatra ordered defendant Gerace detained.
The witness is a protected witness, see Dkt. 347 and #202 on the Government’s Amended
Witness List filed under seal on June 16, 2023.
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has been detained, there has not been (1) an intervening change in controlling law; (2) new
evidence; or (3) the need to correct a clear error of law to prevent manifest injustice. Virgin
Atl. Airways, Ltd., 956 F.2d at 1255. To the contrary, the government has proffered additional
information circumstantially establishing that defendant Gerace may be engaged in or
planning additional witness tampering activity, and that he has stated to a witness that “all
snitches should die!”
First, the defendant’s claim, unsupported by any case law, that Judge Sinatra did not
make written findings of fact is belied by the record. See Case No. 23-CR-37, Dkt. 8. Indeed,
Judge Sinatra issued his Order of Detention Pending Trial on the standard District Court form
AO 472. The Order contained his finding of facts by boxes checked for findings: (i) that there
are applicable rebuttable presumptions that the defendant is a flight risk and danger to the
community; (ii) that the defendant has rebutted the presumption but that detention is still
warranted; (iii) that the Court found that the Government has proven “By clear and
convincing evidence that no condition or combination of conditions of release will reasonably
assure the safety of any other person in the community; (iv) that “[i]n addition to any
findings made on the record at the hearing, the reasons for detention include the following:
weight of the evidence against the defendant is strong, subject to lengthy period of
incarceration if convicted; prior criminal history (emphasis added);” and, (v) the
Government’s detailed proffer- see transcripts from 3/24/2023 and 3/27/23 for analysis.”
Nothing more was required of Judge Sinatra, and the defendant has not provided any
authority to the contrary. In fact, Judge Sinatra did more than necessary by issuing written
findings, and by making findings on the record as memorialized in the transcripts of March
24 and 27, 2023. See also United States v. English, 629 F.3d 311, 321 (2d Cir. 2011) (“the district
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22
court's findings and its reasons for revocation and detention ... may be embodied in a
transcript of the proceedings[.]”). Additionally, on June 6, 203, after cases 19-CR-227 and
23-CR-37 were joined for trial, Judge Sinatra issued another D&O detaining the defendant,
see Dkt. 504, but the defendant ignored this D&O entirely. Accordingly, the defendant’s claim
that Judge Sinatra committed clear error and failed to make findings in support of detention
lacks merit.
Second, as the defendant acknowledges, the government was permitted to proceed by
proffer. See Lafontaine, supra, see also United States v. Ferranti, 66 F.3d 540, 542 (2d Cir. 1995)
(“The rules of evidence do not apply in a detention hearing. Further, the government may
proceed by proffer.”) (citations omitted). However, without additional legal authority or
analysis, the defendant claims the government’s proffer and Judge Sinatra’s reliance upon it
offended Due Process. The defendant’s claims lack merit.
The government supported its proffer with information from

Witness 2, who sent the messages, and Witness 1, whose account
was utilized to send the messages. The government corroborated its witnesses with text
messages (namely, Attorney Cohen utilizing Attorney Michael Bly to circumvent

’s attorney of record, Michael D’Amico), Facebook messages, and evidence that
Gerace considered
a “snitch.” A copy of
December 3, 2020,
testimony is attached hereto and incorporated by reference as Exhibit F. Additionally, the
government proffered information that
was assaulted following a secure interview with
federal law enforcement at a local police department, and that Gerace had a relationship with
a detective involved in
arrest and transport to the local police department.
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Furthermore, the government proffered considerable information about how defendant
Gerace utilized his contacts with former New York State Supreme Court Judge Michalski to
disadvantage others, and proffered text messages exchanged between Michalski and Gerace
during its proffer. All of this information appropriately caused Judge Sinatra to conclude, in
part, the following:

See Dkt. 504, at 2. Notably, the information available to this Court is further amplified by the
additional contained in the Government’s Pre-Trial Memorandum and Motions in Limine,
see Dkt. 441, and the government’s brief regarding the admissibility of IOC evidence, see Dkts.
533 [redacted public version] and 528 [unredacted sealed version], which are incorporated
herein by reference as though set forth fully herein.

The defendant’s cherry-picked excerpts from the transcripts do not change the
calculus, claims impugning the government, and purported inconsistencies between witnesses
do not alter the calculus, or the strength of the government’s proof. On the one hand, Gerace
targeted
, who is an indigent woman with limited means, with a civil lawsuit in
an effort to scare her, silence her, and in an effort to circumvent the federal criminal grand
jury and discovery procedures. On the other hand, he identified her as a “snitch” to others
loyal to him and she has reported that she has been physically assaulted by one individual
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associated with Gerace (before the Facebook threats were made). Additionally, a Federal
Grand Jury determined that she was threatened by Gerace with the help of two other females
who, at one time, were loyal to him. For the purposes of the Bail Reform Act, “an indictment
returned by a duly constituted and unbiased grand jury satisfies the Constitution as to the
existence of probable cause that the defendant committed the crimes enumerated therein.”
United States v. Contreras, 776 F.2d 51, 54 (2d Cir. 1985)

It is well-settled that a judge “retains the responsibility for assessing the reliability and
accuracy of the government's information, whether presented by proffer or by direct proof. Of
course, a detention hearing is not to serve as a mini-trial, as discussed above, or as a discovery
tool for the defendant. Accordingly, a government proffer need not always spell out in precise
detail how the government will prove its case at trial, nor specify exactly what sources it will
use. United States v. Martir, 782 F.2d 1141, 1145 (2d Cir. 1986). Here, the government spelled
out its proof in precise detail, and the defendant’s claim of a Due Process violation in the
manner in which information was presented by the government, or relied upon by Judge
Sinatra, lack merit. Simply put, Judge Sinatra’s acceptance and reliance upon the
government’s detailed proffers did not offend Due Process, and defendant Gerace has failed
to reach the high threshold required for this Court to reconsider Judge Sinatra’s decision.

I.
GERACE HAS A PATTERN OF TAMPERING AND INTIMIDATING
WITNESSES WHILE ON RELEASE.

As set forth above, since defendant Gerace realized that he was a target of this federal
investigation, he and others have engaged in a pattern of attempting to obstruct justice by
intimidating and tampering with witnesses. Courts have recognized the inherent power of a
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25
trial court to remand a defendant, such as defendant Gerace, without bail before trial when
such defendant jeopardizes the court's processes by threatening government witnesses. United
States v. Payden, 768 F.2d 487, 490 (2d Cir. 1985)
First, after Gerace deduced who several of the witnesses were, he used his vast
financial resources to file a civil lawsuit against them in an effort to silence and intimidate
them and to dissuade them from cooperating with law enforcement or appearing at court
proceedings. Gerace, a wealthy strip club owner who lives in a large home in Clarence, New
York, filed the lawsuit against two women with little means and no assets. The fact that
Gerace hired an attorney to file a lawsuit to obtain an uncollectable judgment demonstrates
its nefarious purpose, that is, to intimidate, harass, and deter the witnesses. In United States v.
Camick, the Court affirmed a conviction for witness retaliation pursuant to Title 18, United
States Code, Section 1513(e) whereupon a defendant filed a civil lawsuit against his former
girlfriend after learning his former girlfriend had become a witness against him. 796 F.3d
1206 (10th Cir. 2015). The Court in Camick observed that “to sustain a conviction for
obstruction of justice under § 1513(e), the Government was required to show (1) Mr. Camick
knowingly took an action with intent to retaliate, (2) his action harmed Ms. Wattley
(emotionally, economically, or otherwise), and (3) his retaliation was motivated by Ms.
Wattley's cooperation with law enforcement,” and affirmed the conviction predicated upon
that the circumstances surrounding the filing of the civil lawsuit. Camick, 796 F.3d at 1220.
Defendant Gerace, while not yet charged with this conduct federally, engaged in the same
behavior here as to both

, and these facts were
appropriately proffered by the government and considered by Judge Sinatra.
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26
Second, as referenced above, an associate of Gerace assaulted
shortly
after she provided information to the authorities about Gerace. To the extent there is not
direct evidence that Gerace orchestrated the assault, the event nevertheless underscores his
dangerousness. In particular, if Gerace did not direct the assault, it demonstrates that loyal
associates of Gerace would act on his behalf to harm or threaten witnesses on sight---even in
the absence of a direct instruction.

Third, at the time the threatening Facebook messages were sent

were loyal to Gerace. The Facebook threats exemplify
Gerace’s ability to motivate and utilize others to tamper with witnesses. Moreover, the
messages were sent while Gerace was in the comfort of his own home and involved use of
another person’s phone and Facebook account. Furthermore, the government recently
interviewed an additional witness who provided corroborating details that Gerace is
responsible for the Facebook threats.16 Indeed, while a grand jury determined that there is
probable cause to believe Gerace is responsible for the threats, see Case No. 23-CR-37-JLS,
and its probable cause finding is controlling, the availability of an additional witness since the
time of the March 24 and 27, 2023, detention hearings further buttresses the strength of the
government’s witness tampering case.

Fourth, as detailed above, circumstantial evidence strongly compels the conclusion
that Gerace was behind the dead rats that were placed at Witness 2’s residence, and the
purpose was to intimidate Witness 2 and prevent her from continuing to be a cooperating
witness as the case proceeds to trial.

16 This witness’ identity will remain protected, see Protected Witness 12, supra.
Case 1:19-cr-00227-LJV-MJR Document 591 Filed 08/11/23 Page 26 of 212

27
a. The Court should weigh the evidence and find Gerace responsible for the
dead rats.

As the above timeline demonstrates, Witness 2 was unbothered from November 19,
2019, when she aided Gerace’s efforts to threaten
until after she began
proffering with the government in late February 2023. It was not until after her complaint
was unsealed that Gerace, through his attorney Cohen, reached out to another attorney to
send messages to Witness 2. Moreover, the Gerace defense team knew full well that Witness
2 was represented by her current attorney [and not the attorney that they asked to contact
Witness 2] because (a) the complaint charging Witness 2
was publicly docketed
and her attorney’s name was readily available on Pacer, and (b) Gerace’s attorney had been
in contact with Witness 2’s actual attorney attempting to arrange an interview of Witness 2
on Gerace’s behalf.17

Ultimately, as confirmed by her attorney, Witness 2 declined to be interviewed by the
Gerace defense team. Thereafter, the criminal complaint was unsealed. The criminal
complaint established that Witness 2 and Gerace were responsible for threatening
. After
that, the government filed a motion upon sealed affidavit to adjourn the complaint’s dismissal
deadline. Based upon the above, Gerace deduced that Witness 2 was cooperating with the
government against him. From that point on, Witness 2 was no longer beholden to Gerace
and at that point dead rats started showing up at Witness 2’s house.

Indeed, the timing of the appearance of dead rats was no coincidence. After Gerace
deduced Witness 2 was no longer his loyal servant, circumstances establish that he went into

17 These details have been confirmed by Witness 2’s attorney.

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28
attack mode in order to intimidate the witness. Gerace’s reaction to Witness 2 cooperating
was no different than how he attacked other witnesses through filing a civil lawsuit, or by
having proxies send threats to a witness via Facebook. Indeed, the foregoing is it’s indicative
of Gerace utilizing, to use his words, his “long reach,” to tamper with witnesses.

Importantly, “rat”18 and “nark” are terms that Witness 2 used when sending Facebook
threats to
. Both are derogatory terms for individuals cooperating with law enforcement
and are designed to scare and intimidate witnesses. Dead rats being left at Witness 2’s house
sent an even stronger message. Gerace and Witness 2 have been long-time friends and
confidants. Gerace knows Witness 2 had highly damaging information about him and his
criminal activity.

. Notwithstanding the fact that the government has been unable to identify
specifically who put the dead rats on Witness 2’s mother’s car,19 and her roommate’s car, the
clear implication is undeniable. The message was that “we know you are a rat and if you
continue to cooperate against Gerace you will be killed.”

Defendant Gerace would benefit significantly from Witness 2’s unavailability. In
addition to providing information about Gerace’s involvement in witness tampering, Witness
2 proffered,
and would have testified at trial about Gerace’s

18 It was misspelled ray, but the letter “y” is right next to the letter “t” on a keyboard or phone
screen.

19 The FBI has canvassed the neighborhood and to date has been unable to identify a witness
who observed the rats being placed on the vehicles.
Case 1:19-cr-00227-LJV-MJR Document 591 Filed 08/11/23 Page 28 of 212

29
admissions that Bongiovanni was protecting Gerace and PGC. Witness 2’s testimony would
have been crippling as to Gerace.

As set forth above, on July 7, 2023, the government received information from a
witness further establishing that defendant Gerace made statements

On August 2, 2023, Witness 2 was found
dead. Her death remains under investigation,

Defendant Gerace is a danger to the community. The only thing that has changed
since Judge Sinatra arrived twice at that conclusion is that defendant Gerace has been indicted
for additional criminal conduct in Case No. 23-CR-60, a key witness against Gerace, who
previously had dead rats placed on her mother’s vehicle at her house, has been found dead,
and a witness reported that Gerace has stated,

Case 1:19-cr-00227-LJV-MJR Document 591 Filed 08/11/23 Page 29 of 212

The facts and circumstances reveal that defendant Gerace has engaged in extensive
witness tampering, and that he plans to engage in more of it undetected. Accordingly,
releasing Gerace on any conditions is wholly inadequate and inappropriate.

II.
ADDITIONAL INFORMATION AND ANALYSIS PERTAINING THE
FACTORS SET FORTH IN 18 U.S.C. § 3142(G)

(1) The nature and circumstances of the charged offenses
The nature and circumstances of the charged offense weigh heavily in favor of
detention.

In Case No. 19-CR-227, Gerace is facing up to life imprisonment for bribing a DEA
agent, conspiring to distribute and distribution of controlled substances, maintaining a drug-
involved premises, and for victimizing vulnerable women by exploiting their drug addictions
and leveraging the power imbalance between them in order to coerce them into engaging in
commercial sex acts with him, his friends, and associates.

In Case No. 23-CR-37, Gerace is facing up to 20 years of imprisonment for distributing
cocaine and threatening a woman he perceived to be an important witness against him in
Case No. 19-CR-227. Gerace’s conduct strikes at the heart of the integrity of the proceedings
in this case and compels the conclusion he should remain detained. See, Payden, 768 F.2d at
490.
Case 1:19-cr-00227-LJV-MJR Document 591 Filed 08/11/23 Page 30 of 212

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32
evidence is very strong and this factor weighs heavily in favor of detention.

(3)
The history and characteristics of the person, including such matters as the
person's family ties, employment history, length of residence in the
community, criminal history, and record concerning appearance at court
proceedings

The defendant has a prior federal felony convicted felon for a telemarketing fraud
scheme wherein he victimized a myriad of victims. See Case No. 00-CR-9, Plea Agreement,
Dkt. 165. The defendant admitted that he was “an organizer, manager, and supervisor int eh
criminal activity[.]” Id. at ¶ 9. The defendant violated his supervised release conditions in
that case by using drugs and working at PGC.

The defendant has a history of lying to U.S. Probation in both his prior federal case
and upon arrest in this case. Accordingly, to the extent this Court would need to rely upon
representations by the defendant that he would adhere to conditions set—the defendant’s
representations are unworthy of belief. The Court should not trust the defendant to adhere to
his word. In prior court appearances, defense counsel has stated that the defendant is on trial
for his life. This Court should consider the cost-benefit analysis from the defendant’s
perspective. The risk of tampering with a witness and getting caught (resulting in a remand
pending trial) – versus the reward of successfully tampering with witnesses and preventing
them from testifying against him at trial (avoiding a potential life sentence). The defendant
has every motive to continue tampering with witnesses should he be released on any
conditions.

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33
The defendant also has a history of abusing women in domestic incidents, as
previously proffered by the government, and he was convicted of assault based upon one of
the incidents involving his ex-wife.

Further, the defendant has engaged in criminal conduct while on pre-trial release,
including EIDL loan fraud, which culminated in an Indictment in Case No. 23-CR-60, and
as detailed above and in prior proffers his history includes acts of witness tampering and
intimidation. Moreover, he has boasted about having law enforcement and judicial contacts
and has described himself to one witness as untouchable. The information previously
proffered to the Court corroborates and supports the defendant’s boasts to a witness regarding
his law enforcement and judicial contacts.

The defendant’s employment at PGC is the location of many of the defendant’s crimes.
The defendant’s employees include members of the Outlaws Motorcycle Club. One member
of the Outlaws MC has previously made false and misleading statements on Gerace’s behalf,
as outlined in a prior filing in this case (see Dkt. 110), and law enforcement has long considered
the Outlaws MC to be a dangerous and violent criminal organization. See, e.g., United States
v. Starrett, 55 F.3d 1525, 1533 (11th Cir. 1995) (“The Outlaw Motorcycle Club (the
“Outlaws”) is one of the four largest national ‘one-percenter’ motorcycle clubs. Witnesses
testified that the term ‘one-percenter’—usually depicted by the symbol ‘1% er’—is motorcycle
gang parlance meaning that the club is comprised of the one percent of the overall biker
population who maintain total independence from society, and who are known to cause the
most trouble, or ‘raise the most hell.’”); see also United States v. Bowman, 302 F.3d 1228, 1231
(11th Cir. 2002) (former international president of the Outlaws convicted of racketeering,
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34
conspiracy to murder, and various other offenses); United States v. Lawson, 535 F.3d 434, 438
(6th Cir. 2008), as amended (Oct. 9, 2008) (RICO prosecution relating to Outlaws MC “Green
Region”, including a murder at a strip club.).

As to family ties, while the defendant’s family is located in this area, the defendant’s
attorney recently made admissions to The Buffalo News concerning the defendant’s relatives,
as follows:
“There is no way this jury is going to be able to unhear the term Italian
organized crime,” Cohen said. They're not going to unhear the term mafia.
And they’re also not going to be able to unhear the fact that Peter does have
relatives who were involved in that. Peter himself was never involved in Italian
organized crime. But he has relatives who likely were.”

See, https://buffalonews.com/news/local/crime-and-courts/ex-dea-agent-strip-club-owner-
should-be-tried-together-judge-says/article d2592222-e9ed-11ed-aec6-e7ad940a8f3e.html
(visited June 2, 2023).

Accordingly, this factor weighs heavily in favor of detention.

(4) The nature and seriousness of any risk of danger if the person is released

As set forth above, the defendant poses a danger to the community in a multitude of
ways if released. Whether through witness tampering, fraud schemes, or drug and sex
trafficking activity through PGC, the defendant is an undeniably danger if he is released
pending trial. Simply put, where there is a will there is a way.

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35
If the defendant is released, U.S. Probation does not have the ability to monitor his
activity and meetings 24 hours per day, 7 days per week. Monitoring of his phone will not
provide the content of any communications, or threats, and certainly will not detect whether
he is using a burner phone. Monitoring his location will not work either. The defendant has
committed and engaged in crimes using a computer, and a phone and social media account
of a third-party. If the defendant is out of custody, where his calls, mail, and visits are
unmonitored, it is much easier for him to carry on and to place actual or perceived witnesses
in danger or in fear.

This Court should not indulge any offer by the defendant to create a de facto jail at his
residence because doing so would be woefully insufficient to protect the community.
Electronic monitoring, home incarceration, and assurances by the defendant and others that
he will comply with conditions are insufficient in the face of the flight risk and danger he
poses. See, United States v. Mercedes, 254 F.3d 433, 437 (2d Cir. 2001). Although the defendant
has great means, “[t]he Bail Reform Act does not permit a two-tiered bail system in which
defendants of lesser means are detained pending trial while wealthy defendants are released
to self-funded private jails. It is a fundamental principle of fairness that the law protects ‘the
interests of rich and poor criminals in equal scale, and its hand extends as far to each.’” United
Boustani, 932 F.3d 79, 82 (2d Cir. 2019).

In jail, the content of his calls are monitored and recorded; his visits are documented;
and his behavior is monitored and observed. At home – they are not.

Accordingly, this factor weighs heavily in favor of detention.
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36
III.
THE DEFENDANT’S PRE-TRIAL DETENTION DOES NOT OFFEND
DUE PROCESS OR HIS SIXTH AMENDMENT RIGHT TO COUNSEL.

The defendant cannot engage in conduct that potentially delays his trial on one hand,
such as seeking terminate his lawyer, and then claim that the length of his pre-trial detention
offends Due Process. The length of the defendant’s pre-trial detention does not offend due
process. Indeed, each relevant factor in the analysis weighs heavily in favor of the
government. United States v. Briggs, 697 F.3d 98, 101 (2d Cir. 2012). First, as set forth above
and in the government’s prior arguments, the weight of the evidence justifying detention is
strong. Second, the government is not responsible for the delay in the start of trial from June
21, 2023, August 14, 2023, October 23, 2023, or at any time. Indeed, in or about last
November 2022, the government requested a trial date commencing in April 2023. Third, the
amount of time the defendant has spent in pre-trial detention is insignificant. Defendants in
the Western District of New York, and elsewhere, are often incarcerated for several years pre-
trial before a trial commences. See United States v. Hill, 462 F. App’x 125, 127 (2d Cir. 2012)
(collecting cases). Defendant Gerace has been detained less than one year.

Similarly, detention in a local jail does not deprive him of his right to counsel. In
United States v. Echeverri, the court rejected a claim that a defendant’s pre-trial detention “over
200 miles round trip” from the Eastern District of New York denied his right to counsel. No.
91-CR-885 (DRH), 1992 WL 81876, at *2 (E.D.N.Y. Mar. 31, 1992); see also United States v.
Allick, No. CRIM.A. 2011-020, 2012 WL 32630, at *4-5 (D.V.I. Jan. 5, 2012) (no violation of
Sixth Amendment right to counsel where counsel had to fly from the Virgin Islands to Puerto
Rico where the defendant was detained); United States v. Goudelock, No. 18-CR-138 (JLS),
2022 WL 17687999, at *5 (W.D.N.Y. Dec. 15, 2022) (denying motion for a new trial based
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37
upon the defendant’s claim that his pre-trial detention violated his Fourteenth Amendment
rights and Sixth Amendment right to counsel) (Sinatra, J.).

CONCLUSION
Based upon the foregoing, the Court should not reconsider Judge Sinatra’s decision to
detain the defendant and should reaffirm his finding that Gerace is a danger to the
community. There has not been an intervening change in controlling law; new evidence; or
the need to correct a clear error of law to prevent manifest injustice. To the contrary, there is
additional compelling evidence that that the defendant is a danger to the community. All of
the factors pursuant to Title 18, United States Code, Section 3142(g) weigh heavily in favor
of detention, and the time that the defendant will have served in jail before trial neither
violates Due Process, nor the defendant’s Sixth Amendment right to counsel.

There is no condition or combination of conditions that will reasonably assure the
appearance of the defendant and the safety of the community, and the defendant should
remain detained pending trial.

DATED: Buffalo, New York, August 11, 2023.

COREY R. AMUNDSON

TRINI E. ROSS
U.S. Department of Justice

United States Attorney
Chief, Public Integrity Section

BY:
s/JORDAN DICKSON

BY:
s/JOSEPH M. TRIPI
Trial Attorney

s/NICHOLAS T. COOPER
Public Integrity Section

s/DAVID J. RUDROFF
U.S. Department of Justice

Assistant United States Attorneys
Criminal Division

United States Attorney’s Office
1301 New York Ave. NW, Ste. 1000

Western District of New York
Washington, D.C. 20530

138 Delaware Avenue
202-597-0508

Buffalo, New York 14202
jordan.dickson@usdoj.gov

716.843.5839

Joseph.Tripi@usdoj.gov
Case 1:19-cr-00227-LJV-MJR Document 591 Filed 08/11/23 Page 37 of 212

EXHIBIT A
Case 1:19-cr-00227-LJV-MJR Document 591 Filed 08/11/23 Page 38 of 212

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA

CASE NO. 21-MJ-06112-AOV

UNITED STATES OF AMERICA,
Miami, Florida
Plaintiff(s),
March 2, 2021
vs.

PETER GERACE, JR.,

Defendant(s). Pages 1 - 34
-----------------------------------------------------------
HEARING
TRANSCRIBED FROM DIGITAL AUDIO RECORDING
BEFORE THE HONORABLE ALICIA O. VALLE
UNITED STATES MAGISTRATE JUDGE

APPEARANCES:

FOR THE PLAINTIFF(S): BRENDAN CULLINANE, ESQ.
UNITED STATES ATTORNEY'S OFFICE
WESTERN DISTRICT OF NEW YORK
138 Delaware Avenue
Buffalo, New York 14202
(716) 843-5839
brendan.cullinane@usdoj.gov

JAMES USTYNOSKI, ESQ.
UNITED STATES ATTORNEY'S OFFICE
SOUTHERN DISTRICT OF FLORIDA
99 NE 4th Street
Miami, FL 33132
(305) 961-9001
james.ustynoski@usdoj.gov

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Case 1:19-cr-00227-LJV-MJR Document 591 Filed 08/11/23 Page 39 of 212

APPEARANCES (CONT'D)

FOR THE DEFENDANT(S): JOEL L. DANIELS, ESQ.

42 Delaware Avenue
Buffalo, NY 14202
(716) 856-5140

TRANSCRIBED BY: Joanne Mancari, RPR, CRR, CSR
Court Reporter
jemancari@gmail.com
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Case 1:19-cr-00227-LJV-MJR Document 591 Filed 08/11/23 Page 40 of 212

Thereupon,
the following proceedings were held:
THE DEPUTY CLERK: United States v. Peter Gerace, case
No. 21 6112.
Counsel, please announce your appearance for the
record.
MR. CULLINANE: Good afternoon, your Honor. Brendan
Cullinane, assistant United States attorney from the Western
District of New York, in Buffalo, New York, appearing on behalf
of the government today.
MR. DANIELS: Joel Daniels.
THE COURT: Can you repeat all that. You turned into
some mechanical robot talking.
MR. CULLINANE: I apologize, your Honor. My first
name is Brendan, B-R-E-N-D-A-N, and my last name is Cullinane,
C-U-L-L-I-N-A-N-E. I am an AUSA in the Western District of New
York, in Buffalo, New York.
Thank you.
THE COURT: All right. Thank you.
And locally?
MR. DANIELS: Judge, I'm Joel Daniels, D-A-N-I-E-L-S.
I am an attorney in Buffalo, New York, and I am appearing for
Mr. Gerace.
Thank you.
THE COURT: Thank you.
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Mr. Daniels, have you filed a permanent appearance on
this matter?
MR. DANIELS: I haven't filed anything formally,
Judge. I have been in touch with Mr. Cullinane and our
representative of the government in this case. I have talked
to them many times over the last 15 months.
THE COURT: All right. We will take one step at a
time.
MR. DANIELS: Yes.
THE COURT: Mr., is it Gerace or Gerace? How do I say
your name?
THE DEFENDANT: Gerace.
THE COURT: Gerace?
THE DEFENDANT: Gerace.
THE COURT: Thank you, Mr. Gerace.
Is that you? I just want to identify you in the
cellblock and confirm that it is you.
THE DEFENDANT: Yes, this is me.
THE COURT: All right. Thank you.
Secondly, Mr. Gerace, I want to confirm that I have
your permission to proceed by Zoom. Normally we would all be
in the courtroom, but because of the COVID virus, most of us
are working, as you can see, from home, our offices.
You do have the right to be in the courtroom if that
is what you want, but I am asking whether or not you will allow
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me to proceed by Zoom.
THE DEFENDANT: Yes, your Honor.
THE COURT: Thank you.
Any objection, Mr. Daniels?
MR. DANIELS: None, your Honor.
THE COURT: Mr. Cullinane, from the government?
MR. CULLINANE: No objection. Thank you, Judge.
THE COURT: All right. Thank you very much.
Mr. Gerace, I want to advise you of your rights in
connection with your appearance here this morning. If you have
any questions, please let me know.
Also, if at any point during the proceedings there is
any kind of equipment malfunction, you can't see me or hear us
or whatever, wave your hands, get our attention, so that we can
fix the problem. OK?
THE DEFENDANT: OK. Is my picture supposed to be up
here?
THE COURT: We see you. I don't think you see
yourself maybe.
THE DEFENDANT: OK. That is fine.
THE COURT: We see you.
THE DEFENDANT: OK.
THE COURT: Do you see our pictures?
THE DEFENDANT: I can see everybody, yes.
THE COURT: OK. Good. You know what you look like
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anyway.
All right. So let me get back on a serious note to
advise you of your charges and of your rights.
First of all, you have the right to remain silent.
Anything that you say can be used against you by the
government. You have the right to have a lawyer to represent
you, and of course this morning we have Mr. Daniels here to
represent you. But if you couldn't afford Mr. Daniels, the
court would be able to appoint a lawyer for you at no cost if
you met certain financial conditions. OK?
THE DEFENDANT: Yes.
THE COURT: Also, you have the right to have a bond
hearing or a detention hearing if the government is requesting
that you be detained pending trial. At that time either myself
or another judge would make the decision of whether to release
you on a monetary bond or detain you pending trial.
Do you understand that, sir?
THE DEFENDANT: Yes, your Honor.
THE COURT: Also, if you are released on a monetary
bond, you are nonetheless subject to arrest and revocation of
release if you violate any of the non-monetary terms,
conditions that I may impose along with the monetary bond.
Do you understand that, sir?
THE DEFENDANT: Yes, your Honor.
THE COURT: Also, as I mentioned before, this
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indictment -- has this been unsealed, Mr. Cullinane?
MR. CULLINANE: Yes, your Honor, it has been unsealed.
THE COURT: So you were arrested pursuant to an
indictment that came out of the Western District of New York,
not here locally in the Southern District of Florida. As a
result, you are entitled to certain other procedural safeguards
in addition to the rights that I just told you about, and I am
going to advise you of those.
The first one is you have the right to have what's
called an identity hearing. At that hearing the government
would have to establish that you are in fact the Peter Gerace
that the Western District of New York has charged. In other
words, that they haven't gotten the wrong person. You can
choose to have that hearing or you can choose to waive that
hearing, and you can do that with the advice of your lawyer.
Do you understand that, sir?
THE DEFENDANT: Yes, your Honor.
THE COURT: You also have the right to have, as I
said, the bond hearing or the detention hearing here or in the
Western District of New York. You and your lawyer have to
decide where you want to have it. You only get one shot.
Understood?
THE DEFENDANT: Yes, your Honor.
THE COURT: And lastly, you have the right to explore
resolving this case here in South Florida if you wanted to,
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pursuant to Rule 20 of the criminal rules, but only if you
wanted to plead guilty. If you wanted to go to trial on these
charges, you have to do that in the Western District of New
York.
Understood?
THE DEFENDANT: Yes, your Honor.
THE COURT: Also, if you wanted to plead guilty here
and transfer the case to South Florida, that could only be done
if both prosecutors in New York and Florida agree.
Understood?
THE DEFENDANT: Yes, your Honor.
THE COURT: Ultimately, you have the right to have the
removal hearing here or you can choose to waive your right and
go back and answer these charges forthwith in the Western
District of New York.
Do you understand that, sir?
THE DEFENDANT: Yes, your Honor.
THE COURT: All right. I am going to ask the
prosecutor -- this is a very lengthy indictment and my printer
ran out of paper at page 33, so I am going to ask the
government to please summarize the charges in the indictment as
well as the maximum penalties.
MR. CULLINANE: Thank you, Judge.
Judge, the defendant is charged as a defendant in this
case along with a codefendant in a second superseding
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indictment that contains 18 counts. Defendant Peter Gerace,
Jr. is charged in five of those counts, and that includes
Counts 2, 6, 7, 8 and 9.
Count 2 has a number of paragraphs, which I will
summarize in general.
In Count 2, the defendant, Peter Gerace, Jr., along
with his codefendant, are charged with conspiracy to defraud
the United States, in violation of Title 18, United States
Code, Section 371.
The allegations of the introduction of the indictment
are repeated and re-alleged and incorporated by reference as if
set forth fully here into Count 2.
Additionally, beginning in or about 2005 and
continuing until in or about February 2019, the exact dates
being unknown, in the Western District of New York and
elsewhere, the defendants, including Peter Gerace, Jr. and
Joseph Bongiovanni, did knowingly, willfully, and unlawfully
combine, conspire, and agree together and with others, known
and unknown, to defraud the United States and the DEA by
interfering with and obstructing, by means of deceit, craft,
and trickery, the lawful and legitimate governmental functions
and rights of the DEA, that is, the right to have its business
and its affairs, and the transaction of the official business
of DEA, conducted honestly and impartially, free from
corruption, fraud, improper and undue influence, dishonesty,
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unlawful impairment and obstruction; and the right to the
conscientious, loyal, faithful, disinterested and unbiased
services, decisions, actions, and performance of his duties by
the defendant, and in this case codefendant Joseph Bongiovanni,
in his official capacity as a DEA special agent, free from
corruption, impartiality, improper influence, bias, dishonesty
and fraud in dealing with the DEA and other law enforcement
agencies.
Further, directly and indirectly, corruptly to give,
offer, and promise a thing of value to a public official, with
intent to induce the performance of an official act and to
induce a public official to do an act and to omit to do an act
in violation of his lawful duties, as opportunities arose, in
violation of Title 18, United States Code, Section
201(b)(1)(C); and directly and indirectly, corruptly to demand,
seek, receive, accept, and agree 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, as
opportunities arose, in violation of Title 18, United States
Code, Sections 201(b)(2)(A) and 201(b)(2)(C).
As indicated before, the manner and means in which the
act allegedly occurred are described in paragraphs 3 through
36.
The defendant faces a term of imprisonment of not more
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than five years, a fine of up to $250,000 --
THE COURT: I'm sorry. Can you repeat that?
MR. CULLINANE: I'm sorry.
The defendant as charged faces a term of imprisonment
of not more than five years, a fine of up to $250,000, and a
term of supervised release up to one year.
THE COURT: I'm sorry. That is on Counts 6 and 7?
MR. CULLINANE: Your Honor, that is on Count 2.
THE COURT: That was all the conspiracy.
MR. CULLINANE: Thank you, Judge.
Count 6, your Honor, is the next one, and that is
paying a bribe to a public official.
As described in the indictment, beginning in or about
2009 and continuing until on or about June 6, 2019, in the
Western District of New York, the defendant, Peter Gerace, Jr.,
did, directly and indirectly, corruptly give, offer, and
promise a thing of value to a public official, namely, a DEA
special agent, 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, as
opportunities arose; that is, the defendant, Peter Gerace, Jr.,
paid and facilitated bribe payments to Joseph Bongiovanni, a
DEA special agent, in United States currency to, among other
acts, falsely advise a Federal Bureau of Investigation special
agent that the defendant, Peter Gerace, Jr., was a DEA
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confidential source, thereby inducing the FBI special agent to
abandon a narcotics investigation into the defendant Peter
Gerace, Jr. and Pharaoh's nightclub; to create an official DEA
6 document falsely stating that the defendant Peter Gerace, Jr.
was a DEA source; to provide advice and information to the
defendant Peter Gerace, Jr.; to help the defendant Peter
Gerace, Jr. and Pharaoh's Gentlemen's Club avoid federal
narcotics investigations; to induce Joseph Bongiovanni to use
his position as a DEA special agent to make statements to his
coworker, his fellow DEA special agent, to dissuade and
discourage the fellow DEA special agent from investigating the
defendant Peter Gerace, Jr. and Pharaoh's; to make false and
misleading statements to other members of law enforcement; to
provide information about law enforcement methods and
techniques; to help such drug trafficking activities continue;
and to make false statements in official DEA memoranda in order
to minimize the relationship between Bongiovanni and the
defendant Peter Gerace, Jr. as a means to conceal their
conspiratorial relationship, all in violation of Title 18,
United States Code, Sections 201(b)(1)(A) and Section
201(b)(1)(C).
As charged in Count 6, the defendant faces a term of
imprisonment of not more than 15 years, a fine of up to
$250,000, and a term of supervised release up to three years.
Count 7 charges the defendant, Peter Gerace, Jr., with
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maintaining a drug-involved premises.
As described in the second superseding indictment,
beginning in or about 2006 and continuing until on or about
December 12, 2019, in the Western District of New York, the
defendant, Peter Gerace, Jr., did knowingly, intentionally, and
unlawfully use and maintain a place, that is, the premises
known as Pharaoh's Gentlemen's Club, located at 999 Aero Drive,
Cheektowaga, New York, for the purpose of manufacturing,
distributing, and using cocaine, cocaine base, methamphetamine
and amphetamine, also known as Adderall, Schedule II controlled
substances, and marijuana and heroin, Schedule I controlled
substances, all in violation of Title 21, United States Code,
Section 856(a)(1) and Title 18, United States Code, Section 2.
As for Count 7, the defendant faces a term of
imprisonment of not more than 20 years, a fine of up to
$250,000, and a term of supervised release of up to three
years.
Count 8 charges the defendant with conspiracy to
distribute controlled substances.
As described in the second superseding indictment,
beginning in or about 2009 and continuing until in or about
February 2019, in the Western District of New York, the
defendants, Joseph Bongiovanni and Peter Gerace, Jr., did
knowingly, willfully, and unlawfully combine, conspire and
agree together and with others, known and unknown, to commit
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the following offenses, that is, to possess with intent to
distribute and to distribute cocaine, cocaine base,
methamphetamine and amphetamine and marijuana and heroin, in
violation of Title 21, United States Code, Sections 841(a)(1)
and 841(b)(1)(C); and to knowingly, intentionally, and
unlawfully use and maintain a place that is the premises known
as Pharaoh's Gentlemen's Club, located at the 999 Aero Drive,
in Cheektowaga, New York, for the purpose of manufacturing,
distributing, and using cocaine, cocaine base, methamphetamine
and amphetamine and marijuana and heroin, all in violation of
Title 21, United States Code, Section 846.
As for Count 8, the defendant faces a term of
imprisonment of not more than 20 years, a fine of up to $1
million, and a term of supervised release of at least three
years.
Finally, your Honor, the defendant is charged in Count
9 with conspiracy to commit sex trafficking.
As described in the second superseding indictment,
beginning in or about 2009 and continuing to in or about 2018,
in the Western District of New York, the defendant, Peter
Gerace, Jr., did knowingly, willfully, and unlawfully combine,
conspire, and agree with others to knowingly recruit, entice,
harbor, transport, provide, obtain, and maintain by any means,
in and affecting interstate and foreign commerce, persons, and
to benefit, financially and by receiving anything of value,
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from participation in a venture which has engaged in such acts,
knowing and in reckless disregard of the fact that means 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, in violation of Title 18, United States Code, Sections
1591(a) and 1591(b)(1), all in violation of Title 18, United
States Code, Section 1594(c).
As for this count, Count 9, the defendant faces a term
of imprisonment of not less than 15 years and up to life, a
fine of up to $250,000, and a term of supervised release of at
least three years.
THE COURT: Thank you very much.
Mr. Gerace, did you understand everything the
government said about the maximum penalties for these offenses?
THE DEFENDANT: Yes, your Honor.
THE COURT: All right. I can summarize them for you
if you like.
Would you like me to do that --
THE DEFENDANT: No.
THE COURT: -- or you understood?
MR. DANIELS: Not necessary.
THE DEFENDANT: No, I understood.
THE COURT: All right. Thank you very much.
What is the government's position on bond?
MR. CULLINANE: Your Honor, at this time the
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government has received the Pretrial Services report and,
although it recommends detention, the government at this time
will move for an order setting conditions of release for the
defendant, many of which I've already discussed with
defendant's counsel prior to this appearance.
THE COURT: Thank you.
Melania, did you send me a Pretrial Services report on
this one?
PRETRIAL SERVICES OFFICER: Yes, your Honor. Yolanda
sent it to the court.
Do you need me to resend it?
THE COURT: Yes, if you don't mind. I'm sorry.
Unless this is when I ran out of paper, I guess.
PRETRIAL SERVICES OFFICER: I just sent it, your
Honor. Let me know if you received it.
THE COURT: All right. Thank you.
I'm sorry for the delay. Please wait for me.
(Pause)
THE COURT: Got it. Let me just print it out.
All right. I will be right back. We just have to go
get it from the printer. Excuse me one second.
THE DEFENDANT: Thank you.
(Pause)
THE COURT: Mr. Gerace, this is also a removal
hearing, so I'd like to hear from Mr. Daniels what they're
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hoping to do in terms of identity hearing and removal before I
go on to the bond.
MR. DANIELS: Judge, good morning. We would waive an
identity hearing.
THE COURT: Mr. Daniels, can you speak up a little
louder, please.
MR. DANIELS: I'm sorry, Judge. Is that better? I'm
sorry. Can you hear me?
THE COURT: There is just a lot of noise in the
cellblock which interferes.
MR. DANIELS: I'm sorry.
THE COURT: Hold on. That is OK. It happens.
MR. DANIELS: Judge, we will waive an identity hearing
and we can proceed with the hearing. We would ask the court to
consider --
THE COURT: I'm sorry. I keep hearing this squeaky
chair that I can't hear you over.
Does anybody else hear it or am I going crazy?
MR. CULLINANE: I'm having a difficult time as well,
Judge Valle.
PRETRIAL SERVICES OFFICER: I also hear it, Judge.
THE COURT: Thank you. I felt like I am going crazy.
All right. Thank you.
Don't move whoever has the squeaky chair.
Mr. Daniels, if you could repeat yourself. I'm so
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sorry to interrupt you.
MR. DANIELS: Of course. That is no problem, Judge.
We understand. This is what happens on Zoom. We all
understand it and we have to adjust and live with it. There is
nothing else we can do about it.
THE COURT: I think everybody has to be flexible
nowadays, right.
MR. DANIELS: That is right. We are. We certainly
are. Yes, Judge.
We have no objection to an identity hearing. Excuse
me. We will waive an identity hearing. That is what I meant
to say.
THE COURT: OK. Thank you.
In terms of bond, you were saying Mr. Gerace, that is
when I went to get the Pretrial Services report.
I'm sorry. Mr. Cullinane.
MR. CULLINANE: Yes, your Honor. Yes, your Honor.
THE COURT: Sorry to butcher your name.
MR. CULLINANE: That is OK. Judge, yes. The
government would ask for a number of conditions to be imposed
here. We are not asking for a monetary bond of any kind, but
we are asking that the court place a number of restrictions and
conditions in place for an order setting conditions of release.
If I could be heard on that.
THE COURT: I'm sorry. So let's back up.
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The reason I went to get the Pretrial Services report
is because Pretrial Services is recommending detention. You're
saying don't do that, we have an agreement, and release him and
he is going to make his way back to the Western District, or
what do you want?
MR. CULLINANE: That is correct, your Honor.
THE COURT: So what conditions are you proposing?
MR. CULLINANE: Thank you, your Honor. First we'd
like to ask for electronic monitoring to be imposed, and we'd
like that to be followed by a term of or an order for home
confinement after he is returned back to the Western District
of New York. I understand he is in custody right now and he
may have been staying in a hotel, but we'd ask that he be
ordered to immediately return while on electronic monitoring
and be placed on home confinement.
We'd ask for no contact with his codefendant,
coconspirators or victims.
We'd ask for, Judge, an order to be imposed that he
stay away from Pharaoh's Gentlemen's Club, which is the
establishment that was listed in the indictment and that I
referenced a number of times. That is located at an address of
999 Aero Drive, Aero spelled A-E-R-O, Drive, in Cheektowaga,
New York, which is spelled C-H-E-E-K-T-O-W-A-G-A, New York.
An additional order, your Honor, asking him to stay
away from any other clubs or establishments that could be
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described as strip clubs or adult entertainment clubs.
We'd ask for, I believe, the standard condition asking
for drug testing.
We'd ask that the defendant be required to surrender
his passport, or it looks like a passport book that he has.
We'd ask for no alcohol, no permissible alcohol or
drug use.
Finally, zero tolerance, your Honor.
THE COURT: What do you mean by "zero tolerance?"
MR. CULLINANE: Well, in this district sometimes, your
Honor, we have individuals who may commit an infraction and
some courts will impose what they cause zero tolerance, to say
that if there is any infraction of any kind, the person will be
ordered detained pursuant to a warrant and brought into custody
at that time.
THE COURT: Mr. Daniels, any objections to any of the
terms that the prosecutor has listed?
MR. DANIELS: Yes, Judge. I spoke to Mr. Cullinane
and Mr. Tripe about those conditions. Just very briefly,
Judge, in the way of background here, Mr. Gerace is 53 years
old. He is divorced. He lives with his 14-year-old son. This
investigation has been going on for a long time, at least 15
months. He is a long-time resident of Buffalo. I think he was
born and raised here.
Concerning electronic monitoring and home confinement
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and staying out of Pharaoh's, Judge, respectfully, we would
object to that. He is the owner of Pharaoh's and, as
Mr. Cullinane rightly described it, it is a gentlemen's club.
It opens around noon seven days a week and it stays open until
sometimes 3, 4 until the morning. He is not there 70 percent
of the time. He may go in sometimes around noon or 1 or 2:00
in the afternoon and stay for a few hours and just do work in
the office. That's all. He handles a lot of the paperwork and
the business work, and it is a fairly busy place. But after
that, Judge, he isn't there. He is not there in the evenings.
This is his business. This is what he has been
running and owning for the last several years. The business
was owned, I believe, by his mother before that. So
respectfully, Judge, we ask that the court allow him to go to
work. That is what he does. That is his only business and his
only income.
As far as not having any contact with the codefendant
or codefendants, we understand that, Judge. But not having any
contact with victims, respectfully, we don't know who exactly
the victims are.
As the court is aware, this is a very lengthy
indictment. It was sealed. We had not had an opportunity to
see it. It was just emailed to us, I believe, this morning.
Hopefully I have enough paper in the printer so I can print it
out, but we will review it as soon as we can. We just don't
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know who those victims are.
The remaining conditions, Judge, we understand and I
am sure we can deal with them.
THE COURT: Well, Mr. Daniels, it sounds to me like
those are some major objections to the government's recommended
bond. If that is the case, then I think you are going to have
to make a decision whether you want to have a bond hearing here
or with the judge in the Western District of New York, because
obviously I am not going to make this decision because it
sounds like you want a bond hearing, is what I'm hearing you
say.
MR. DANIELS: We don't want that, Judge. We are
willing to go along with the government's recommendation. We
appreciate them allowing him to be released, come back to
Buffalo, and appear before a magistrate here, Judge. We were
just opposing for the record some of the conditions that the
government was requesting. But that is your decision, Judge.
THE COURT: I think your client wants to say
something.
Do you want to speak to your lawyer, Mr. -- I'm sorry;
I forgot your name now -- Gerace?
MR. DANIELS: Judge, that is unnecessary. I don't
have to speak to him about that now.
THE COURT: OK. I'm sorry. I am a little confused
right now. So do you want me to have a bond hearing or are you
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waiving your right to have a bond hearing here and allowing the
bond hearing to take place in the Western District of New York?
MR. DANIELS: Yes, Judge. We would ask that the court
allow his release to come back here and we can address that
issue here. We would agree that the government's -- sorry. We
would agree with the government's recommendation for release,
allow him to come back here, again with the conditions,
Judge --
THE COURT: I'm sorry.
MR. DANIELS: I'm sorry, too, Judge.
THE COURT: It is actually not a squeaky chair. It
sounds like it is the marshal's radio that we are hearing.
MR. DANIELS: That is the way it is. We understand
that. We were just objecting for the record to some of the
conditions that the government was proposing, and I assume
those matters could be readdressed once we come back here to
Buffalo. But we'd like to have him released and get back here
as soon as he can, Judge.
Thank you.
THE COURT: From the government, anything else?
MR. CULLINANE: No, your Honor. Thank you.
THE COURT: All right. I understand -- I mean, I'm
reviewing -- Tamisha, can you put me in a room with Melania,
and I think Mr. Gerace wants to speak to his lawyer at this
time. Maybe Mr. Daniels can call the marshal's cellblock and
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they can speak.
THE DEPUTY CLERK: OK. I can provide him with the
telephone number.
MR. DANIELS: Sure.
THE DEPUTY CLERK: Mr. Daniels, the number that you
can reach Mr. Gerace is 954 area code 660-5823.
MR. DANIELS: Sure.
THE DEPUTY CLERK: Judge, just give me one moment.
THE COURT: Thank you.
(Pause)
THE DEPUTY CLERK: We are back on the record, Judge.
THE COURT: Thank you.
I took an opportunity to speak with Pretrial Services.
With reference to the sex trafficking charge in Count
9, does that involve minors or is that adults?
MR. CULLINANE: Adults.
THE COURT: OK. Good. Clarification, because
otherwise we would have to impose the Adam Walsh condition. So
I wasn't sure about that.
MR. CULLINANE: You're correct, Judge. I checked the
language again and it reflects the language involving force,
fraud, and coercion, combination of such means, not the minor
part.
Thank you, Judge.
THE COURT: OK. So no minors.
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MR. CULLINANE: Correct.
THE COURT: All right. Thank you.
Well, this was an interesting case because but for the
government's recommendation, this is a case where I think
detention would be warranted. However, this is a case that
emanates from the Western District of New York, and the
prosecutor from the Western District of New York is here. So I
am going to accept the recommended bond, to which I understand
Mr. Daniels will probably oppose once they get into the Western
District of New York. For now the bond will be set as follows.
I am going to order that the defendant be detained in
home confinement with allowances only for court appearances,
medical visits, attorney visits.
He will be having electronic monitoring, and
specifically I'm referring to GPS location monitoring, services
to be paid by the defendant.
The defendant is not to have any contact with any
codefendant, in this case Mr. Bongiovanni, or any
coconspirators or any victims in the case.
The defendant is not to visit Pharaoh's Gentlemen's
Club at 999 Aero Drive in Cheektowaga, New York, in the Western
District.
MR. DANIELS: Cheektowaga.
THE COURT: And not to visit any other strip clubs,
adult entertainment clubs in the district. Not just in the
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area, in the district.
The defendant is to submit to drug testing as required
by Pretrial Services. He is to relinquish his passport to the
Pretrial Services office and not obtain any new passport during
the pendency of the case. He is also not to have any alcohol
use or any illegal drug use.
I also need to know the address where he is staying
here in Florida. Pretrial Services needs to contact him
immediately.
The defendant is not to have any firearms or other
dangerous weapons.
The travel, I am going to restrict it to the Western
District of New York and the Southern District of Florida. He
just needs to get himself up there. Other than that, travel
will be limited to the Western District of New York.
Any other recommendations from Pretrial Services or
the government?
Melania.
PRETRIAL SERVICES OFFICER: Your Honor, we would need
the address to put it on the record or where he is staying and
a phone number.
THE COURT: Mr. Daniels can provide that to you, I
guess.
MR. DANIELS: I don't know it, but I would ask
Mr. Gerace to provide that to Ms. Vasquez if she asks him,
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Judge, if that is OK with the court.
THE COURT: Yes.
Mr. Gerace, can you please provide where you are
staying, the location.
The GPS monitoring -- Melania, is that what you are
asking? The GPS will be installed immediately?
PRETRIAL SERVICES OFFICER: That is correct, your
Honor. Pretrial cases have to get installed within 24 hours.
MR. DANIELS: May I speak to Mr. Gerace, Judge?
THE COURT: Yes.
MR. DANIELS: Peter, where are you staying?
THE COURT: He's muted. There you go.
MR. DANIELS: Peter, where are you staying?
THE DEFENDANT: Right now I don't know. When I leave
here -- they took my phone, so I don't know anybody's phone
number except my parents' home phone. So when I leave here I
am going to call my parents and tell them to call my friend
Dan, who lives down here, and see if he can pick me up because
I have nowhere to go.
MR. DANIELS: Where were you staying?
THE DEFENDANT: I was going to stay at the hotel, but
this all happened. I never --
MR. DANIELS: You didn't check in.
THE DEFENDANT: It's gone now. I checked in but he
checked me out.
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MR. DANIELS: Do you plan to stay with your friend
down here, is that it?
THE DEFENDANT: I am going to take a look as soon as I
get out of here, I am going to take a look and see how fast I
can get a plane out of here because my plane ticket is for
Friday. I am going to see if I can get out sooner. I am going
to see if I can get a nonstop flight.
MR. DANIELS: Could you just mute him again, please,
if that is possible.
THE DEFENDANT: I'm sorry?
MR. DANIELS: I am just asking the court if they could
mute you for a moment and I can speak to Ms. Vasquez and the
court. Thank you.
May I speak to Ms. Vasquez about that, Judge?
THE COURT: Yes. Go ahead.
MR. DANIELS: Ms. Vasquez, could you speak to
Mr. Gerace and find out where he is going to be staying so that
you can set up whatever you need. You will be able to do that?
PRETRIAL SERVICES OFFICER: You mean right now?
MR. DANIELS: Well, at your convenience.
PRETRIAL SERVICES OFFICER: Yes, we need something on
the record.
MR. DANIELS: OK.
THE COURT: I think, on the record, the problem is,
Melania, that he is saying he doesn't know what he is doing.
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So it is giving me quite a lot of pause. I think I am
trying to bend over backwards to work with the government on
the one hand and with the defense in terms of not holding him,
but I think this case might be better suited for a bond
hearing.
MR. DANIELS: Judge, we'd like to waive that, not
waive it in a sense, but I don't think we need a bond hearing.
I am sure we can resolve this and we can provide Ms. Vasquez
whatever it is that she is going to need. Perhaps if I
could --
THE COURT: He is not going to be released until she
has the information that she requires.
MR. DANIELS: Judge, can I have one minute, beg the
indulgence --
THE COURT: Yes, you may call him.
MR. DANIELS: -- I will call him, and hopefully I can
provide Ms. Vasquez and the court with whatever they need. I
will call him right now.
PRETRIAL SERVICES OFFICER: And a phone number, too,
sir, please.
THE COURT: Bottom line is he will not be released
until she has a verifiable address and phone number.
MR. DANIELS: We'll take care of that.
I am going to call him right now, Judge. I'd ask the
court not to mute me out because I don't know how to get back
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on and unmute it. So I will just step out over on the side.
THE COURT: OK.
MR. DANIELS: Thank you. Thank you very much, Judge.
(Pause)
MR. DANIELS: Judge, thank you very much. I
appreciate that. I know it is late and it's been a long
morning for the court. Early afternoon.
He is staying with a friend in Plantation. I can get
the phone number. If I could have Ms. Vasquez's number, I can
call her directly, give her all the information, and we agree
he will stay in custody until Ms. Vasquez is satisfied that she
has all the information that she needs. Hopefully I can
provide that to her within 15 minutes.
THE COURT: Melania, I think he wants a phone number
from you where he can reach you.
PRETRIAL SERVICES OFFICER: Sorry, your Honor. I was
using my headphones. I couldn't really hear.
It is (954) 769-5547.
MR. DANIELS: May I just repeat that back to you,
Ms. Vasquez?
PRETRIAL SERVICES OFFICER: Sure.
MR. DANIELS: (954) 769-5547.
PRETRIAL SERVICES OFFICER: That's correct.
MR. DANIELS: I am going to make a couple of phone
calls. I will get the phone, I will get the address, I will
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get the phone number, and hopefully we can get done whatever we
have to do.
THE COURT: All right. I take it that, just to recap
where we are, you are waiving the identity hearing, I will
enter the order of removal, which has to be signed, and the
bond has been set.
MR. DANIELS: Yes.
THE COURT: Any other conditions of bond that I
missed, Mr. Cullinane?
MR. CULLINANE: Thank you, Judge. Just two issues I'd
like to address. I may have missed one of them.
The only thing I wanted to note is, just after meeting
with Ms. Vasquez that the court has ordered him to immediately
or quickly thereafter return to the Western District of New
York.
THE COURT: Yes.
MR. CULLINANE: Finally, Judge, there was a concern
from Mr. Daniels about the identity of certain people. One
person I would like to address for the record that he stay away
from and have no contact with, initiate no contact with, is an
individual woman named Katrina, that is spelled K-A-T-R-I-N-A,
and her last name is Nigro, N-I-G-R-O. She was formerly
referred to as Katrina Gerace.
MR. DANIELS: We know who she is, Judge.
THE COURT: All right.
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MR. DANIELS: We will stay away from her.
THE COURT: To the extent that there are other victims
identified, it will be the government's responsibility to share
those names with the Pretrial Services officer so that they can
enforce that restriction.
MR. CULLINANE: Thank you, Judge Valle.
THE COURT: Anything further from either side?
MR. CULLINANE: Nothing further from the government,
your Honor.
THE COURT: Mr. Daniels, anything further?
MR. DANIELS: No, nothing. Thank you very much.
Thank you.
THE COURT: So I will or we will have to sign the
paperwork, Tamisha, for the waiver.
MR. DANIELS: Yes. He will sign whatever he has to
sign, Judge.
THE DEPUTY CLERK: I can email it to defense counsel.
I noted for the record that it was verbally waived.
THE COURT: OK. Great.
PRETRIAL SERVICES OFFICER: Your Honor, just a quick
question. Did the court impose a no firearms restriction in
this case?
THE COURT: I did, didn't I?
MR. CULLINANE: Yes, your Honor.
THE DEPUTY CLERK: Yes, you did.
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PRETRIAL SERVICES OFFICER: Thank you, Judge.
THE COURT: Yes, I did. I said no firearms or other
dangerous weapons, surrender the passport, travel restriction
to the Western District of New York and Florida only for
purposes of getting out of here. After that, only the Western
District of New York.
THE DEFENDANT: Yes.
THE COURT: Also, he should notify Pretrial Services
when he will be traveling out to the Western District.
All right. Anything further?
MR. DANIELS: No, Judge.
THE COURT: This is one of the messiest removal
hearings we have had.
THE DEFENDANT: Thank you.
MR. CULLINANE: Our apologies, and we owe you a ream
of paper. So thank you, Judge, for your time today.
THE COURT: You're very welcome.
All right, everyone.
Mr. Gerace, I just want to address you. One of the
things that the government asked for was this zero tolerance
order. We don't usually enter it in this district, but
basically what I do in this district is tell the defendants, as
I'm about to tell you, how lucky you are because under normal
circumstances Pretrial was recommending that you would be
detained, and the charges in this case are so substantial that
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but for the government's recommendation you would be detained.
So my pitch to you is understand how lucky you are to
be released. Even though it is an inconvenience that you might
not be able to go to Pharaoh's, you wouldn't be able to go to
Pharaoh's if you were in jail either. So look at it that way.
Being home detained is certainly an advantage that the
government has given you an opportunity, but don't blow it.
What I'm saying to is if you fail to abide by any of the
conditions in my bond, the bond will be revoked and you will go
to jail pending trial.
Do you understand that, sir?
THE DEFENDANT: Yes, your Honor.
THE COURT: All right. Thank you.
All right, everyone. Have a good afternoon and stay
safe, all of you.
MR. DANIELS: Thank you, Judge.
PRETRIAL SERVICES OFFICER: Thank you, Judge.
MR. CULLINANE: Thank you.
THE COURT: This concludes our calendar.
(Adjourned)

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Case 1:19-cr-00227-LJV-MJR Document 591 Filed 08/11/23 Page 72 of 212

C E R T I F I C A T E

I hereby certify that the foregoing is an accurate
transcription to the best of my ability of the digital audio
recording in the above-entitled matter.

March 29, 2021 s/ Joanne Mancari
Joanne Mancari, RPR, CRR, CSR
Court Reporter
jemancari@gmail.com
Case 1:19-cr-00227-LJV-MJR Document 591 Filed 08/11/23 Page 73 of 212

EXHIBIT B
Case 1:19-cr-00227-LJV-MJR Document 591 Filed 08/11/23 Page 74 of 212

UNITED STATES PROBATION

AND PRETRIAL SERVICE

MEMORANDUM

DATE: March 4, 2021

TO: Honorable Michael J. Roemer

U.S. Magistrate Judge

FROM: Andre M. McCray

U.S. Probation Officer Assistant

SUBJECT: Peter Gerace

WD/NY Docket #19-CR-227

SD/FL Docket # 21-MJ-06112

Updated Information

On March 1, 2021, the above-named defendant appeared with retained counsel for an initial
appearance before U.S. Magistrate Judge, Alicia O. Valle, in the Southern District of Florida,
on an indictment and warrant originating from our district. At that time, the defendant was
released on a personal surety bond with global positioning satellite system (G.P.S.) via home
detention. The Court allowed the defendant to reside in Florida, until his scheduled return to
the Western District of New York on Friday, March 3, 2021.
It is to be noted that the time of the defendant’s initial drug test conducted in the Southern
District of Florida, he tested positive for cocaine. Mr. Gerace reported taking some pills
at a social gathering but, did not report cocaine use. At the time of the pretrial services
interview, the defendant reported a history of cocaine use, with his last date of use being
approximately one and a half years ago.
I have reviewed the bail report authored by U.S. Probation Officer, Yolonda N. Rawl, in the
Southern District of Florida, in which the recommendation was detention pending the
disposition of the case. I respectfully disagree with the aforementioned recommendation. Our
office respectfully recommended that the defendant be released on the following conditions
imposed by U.S. Magistrate Judge, Alicia O. Valle, in the Southern District of Florida.

Report to Pretrial Services as directed by the U.S. Probation Officer.

Surrender any passport/passport card to the Clerk of the Court. Surrender other

international travel documents to the appropriate authorities.

Do not obtain a new passport or other international travel documents.

Travel restricted to: Western District of New York unless Court

permission is granted to travel elsewhere.
Case 1:19-cr-00227-LJV-MJR Document 591 Filed 08/11/23 Page 75 of 212

Remain at a verifiable address as approved by Pretrial Services.

Avoid all contact with codefendants and defendants in related cases unless approved by

Pretrial Services.

Avoid all contact with, directly or indirectly, with any person(s) who are or who may

become a potential victim or witness in this case.

Possess no firearm/destructive device.

Refrain from any use of alcohol.

Refrain from the use or unlawful possession of a narcotic drug unless prescribed.

Submit to drug/alcohol testing and/or treatment as directed by Pretrial Services, including

co-pay.

Refrain from obstructing or attempting to obstruct or tamper, in any fashion, with the

efficiency and accuracy of any prohibited substance testing which is required as a

condition of release.

Abide by the conditions of the Location Monitoring Program (GPS), to be monitored

electronically, via home detention, you are restricted to your residence at all times except

for employment; education; religious services; medical, substance abuse, or mental health

treatment; attorney visits; court appearance and court-ordered obligations. You will

contribute to the cost of services (co-pay) as directed by the Pretrial Services Officer.

Refrain from obstructing or attempting to obstruct or tamper, in any fashion, with

electronic monitoring which is required as a condition of release.

Report within 72 hours, to the Pretrial Services Office any contact with any law

enforcement personnel, including, but not limited to any arrest, questioning or traffic

stop.

The defendant shall not have any contact with Katrina Nigro.

The defendant shall not visit Pharaoh’s Gentlemen’s Club located at 999 Aero Drive,

Cheektowaga, New York; an order to stay away from the strip clubs.

If Your Honor should have and questions, feel free to contact me at

Case 1:19-cr-00227-LJV-MJR Document 591 Filed 08/11/23 Page 76 of 212

EXHIBIT C
Case 1:19-cr-00227-LJV-MJR Document 591 Filed 08/11/23 Page 77 of 212

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
UNITED STATES OF AMERICA, *
Docket No.
1:23-cr-00037-JLS-MJR-1
*
*
Buffalo, New York
v.
*
March 24, 2023
*
1:03 p.m.
*
PETER GERACE, JR.,
*
ARRAIGNMENT
*
Defendant (1). *
*
* * * * * * * * * * * * * * *
TRANSCRIPT OF PROCEEDINGS
BEFORE THE HONORABLE JOHN L. SINATRA, JR.
UNITED STATES DISTRICT JUDGE
APPEARANCES:
For the Government:
TRINI E. ROSS,
UNITED STATES ATTORNEY,
By DAVID RUDROFF, ESQ.,
JOSEPH M. TRIPI, ESQ.,
NICHOLAS COOPER, ESQ.,
Assistant United States Attorneys,
Federal Centre,
138 Delaware Avenue,
Buffalo, New York 14202,
Appearing for the United States
And
JORDAN ALAN DICKSON, ESQ.,
U.S. Department of Justice,
Criminal Division,
Public Integrity Section,
1331 F Street NW,
Washington, DC 20004.
For the Defendant:
LIPPES MATHIAS WEXLER FRIEDMAN, LLP,
By ERIC M. SOEHNLEIN, ESQ.,
50 Fountain Plaza,
Suite 1700,
Buffalo, New York 14202.
Case 1:19-cr-00227-LJV-MJR Document 591 Filed 08/11/23 Page 78 of 212

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USA v Peter Gerace, Jr. - Proceedings - 3/24/23

2
The Courtroom Deputy:
KIRSTIE L. HENRY

Court Reporter:
BONNIE S. WEBER,
Notary Public,
Robert H. Jackson Courthouse,
2 Niagara Square,
Buffalo, New York 14202,
Bonnie_Weber@nywd.uscourts.gov.

Proceedings recorded by mechanical stenography,
transcript produced by computer.
(Proceedings commenced at 1:03 p.m.)
THE CLERK: All rise.
The United States District Court for the Western
District of New York is now in session. The Honorable John
Sinatra presiding.
THE COURT: Please be seated.
THE CLERK: United States versus Peter Gerace, Jr.,
case number 23-CR-37. This is the date set for arraignment.
Counsel, please state your appearances for the record.
MR. TRIPI: Good afternoon, Your Honor. Joseph Tripi,
David Rudroff, Nicholas Cooper, and Jordan Dickson for the
United States.
MR. SOEHNLEIN: Good afternoon, Your Honor. Eric
Soehnlein with Mr. Gerace.
THE COURT: Good afternoon, counsel.
Good afternoon, Mr. Gerace.
Case 1:19-cr-00227-LJV-MJR Document 591 Filed 08/11/23 Page 79 of 212

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USA v Peter Gerace, Jr. - Proceedings - 3/24/23

3
THE DEFENDANT: Good afternoon.
THE COURT: Mr. Tripi, are there any victim
notifications required at this time?
MR. TRIPI: Yes, there are, Your Honor. We're making
efforts to make notifications to the witnesses.
THE COURT: And the indictment has been unsealed?
MR. TRIPI: I'll make that application now and move to
unseal the indictments.
I have previously provided it to probation and defense
counsel this morning, but I have not asked you to unseal yet, so
I'm making that application now.
THE COURT: Any objections, Mr. Soehnlein?
MR. SOEHNLEIN: No objections, Your Honor.
THE COURT: Okay. That application is granted.
Anything else to do?
MR. TRIPI: Yes, Your Honor. There's a four-count
indictment charging the defendant with three counts of witness
tampering.
Each of those three counts each relate to allegations,
November 19, 2019. Each of those three counts carry with it a
maximum penalty of 20 years and a $250,000 fine.
A fourth count is Count Four, distribution of cocaine,
dated November 19, 2019. All of the alleged crimes are in this
district. That also carries a maximum penalty of $20 million
and a $1 million fine.
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I assume that the defense will waive a reading of the
indictment and enter a plea of not guilty, but --
THE COURT: Do you concur, Mr. Soehnlein, in that
regard?
Do you represent Mr. Gerace on this indictment?
MR. SOEHNLEIN: I do, Your Honor. I'm retained. We
will waive any further reading. We will enter a plea of not
guilty.
THE COURT: Okay. All right. In order to take those
not guilty pleas, we're going to administer the oath to
Mr. Gerace.
So why don't you stand and take the oath, Mr. Gerace.
Ms. Henry --
MR. SOEHNLEIN: Can I just have one minute with him,
Your Honor?
THE COURT: Of course.
(Discussion off the record.)
MR. SOEHNLEIN: Thank you, Judge.
THE COURT: Okay, Ms. Henry.
PETER GERACE, having first been duly sworn, testified as
follows:
THE DEFENDANT: I do.
THE COURT: Please be seated, Mr. Gerace. What's your
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full name?
THE DEFENDANT: Peter Gerace.
THE COURT: Okay.
THE DEFENDANT: G is a middle initial.
THE COURT: All right. And how old are you?
THE DEFENDANT: 55.
THE COURT: How far along in school did you go,
Mr. Gerace?
THE DEFENDANT: First year of college.
THE COURT: What's your most recent or current
employment?
THE DEFENDANT: Pharaoh's.
THE COURT: Are you currently or have you recently
been under the care of a physician or psychiatrist or been
hospitalized or treated for narcotics addiction?
THE DEFENDANT: I go to a psychiatrist, but not for
that.
THE COURT: Is there anything about that, what you go
to a psychiatrist for that affects your judgment?
THE DEFENDANT: No.
THE COURT: Does it affect your ability to understand
what you are doing here today?
THE DEFENDANT: No.
THE COURT: Have you taken any drugs, medication,
pills, or any alcohol in the last 24 hours?
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THE DEFENDANT: No.
THE COURT: Is Mr. Soehnlein your lawyer?
THE DEFENDANT: Yes.
THE COURT: Okay. Have you received a copy of the
indictment that Mr. Tripi summarized?
THE DEFENDANT: Yes. It's here.
THE COURT: Have you had a chance to discuss it with
your lawyer?
THE DEFENDANT: Yes.
THE COURT: And are you waiving reading of that
indictment?
THE DEFENDANT: Yes, Your Honor.
THE COURT: How do you plead to the four counts in
that indictment?
THE DEFENDANT: Not guilty.
THE COURT: And that's as to all four counts?
THE DEFENDANT: Yes, sir.
THE COURT: Okay. As you know, Mr. Gerace, you have
the right to an attorney in this case, this new indictment.
We'll address the detention request, if any, and the pretrial
release issue, if any, next.
You have a right to consult your counsel. You have a
right not to make any statement. If you choose make a
statement, that statement may be used against you.
Are you aware of all that?
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THE DEFENDANT: Yes, Your Honor.
THE COURT: Okay. I need to cover the Due Process
Protections Act.
That statute and Rule 5(f)(1) require me to direct the
prosecution to comply with its Brady obligation and that case's
progeny, to disclose to the defense all information, admissible
or not, that is favorable to the defendant, material either to
guilt or punishment and known to the prosecution.
Possible consequences for noncompliance may include
dismissal of individual charges or the entire case, exclusion of
evidence, and professional discipline or court sanctions on the
responsible attorneys.
I'm going to enter that order now and direct the
prosecution to review and comply with it.
MR. TRIPI: Understood, Your Honor.
THE COURT: Okay. Here it is.
Okay. As to the arraignment, Mr. Tripi, have I missed
anything?
MR. TRIPI: No, Your Honor.
THE COURT: Mr. Soehnlein --
MR. SOEHNLEIN: No, Your Honor.
THE COURT: Okay. Before we get to any detention or
release issue, Mr. Tripi, is there anything I need to know about
the Government's plans for this indictment vis-a-vis the other
pending case that I've got with Mr. Gerace and Mr. Bongiovanni?
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MR. TRIPI: Yes, Judge. We do plan within relatively
short order to file a motion to join this case with the pending
indictment that's set for trial.
THE COURT: Okay. I'm going to be, at some point
today, sending you, both sides, to Magistrate Judge Roemer to
work out a schedule -- a pretrial schedule.
So there will be a referral and pretrial schedule in
front of Judge Roemer. You probably want to let him know your
plans as well.
MR. TRIPI: Yes, Your Honor.
THE COURT: Next, is the Government moving for
detention?
MR. TRIPI: Yes, Judge. We are moving for detention.
THE COURT: Okay. And, Mr. Soehnlein, are you
prepared to proceed and have a detention hearing now?
MR. SOEHNLEIN: Yes, Your Honor.
THE COURT: Okay.
MR. TRIPI: May I proceed, Your Honor?
THE COURT: You may.
MR. TRIPI: Your Honor, this four-count indictment, as
you know, charges three counts of witness tampering and one
count of distribution of cocaine, which occurred November 19,
2019.
At the outset, I will just note that Count Four of
this indictment does carry a presumption of detention pursuant
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to Title 18, US Code Sections 3142(e)(3)(C) and (f)(1)(C), due
to the drug count that's included. The presumption is that the
defendant is a flight risk and a danger to the community.
Additionally, Your Honor, we will be proceeding by
proffer, as is well-documented is permitted by the Second
Circuit in United States versus LaFontaine. That's a Second
Circuit case in year 2000.
And interestingly, in that case, Your Honor, before I
get to the core of my proffer here, that case involved witness
tampering, and it didn't allege any allegation of violence or
threats, which is a little bit different here; this involves
intimidation and threats.
In LaFontaine, the Court said: We have a record of
violence or dangerousness in the sense of threats or is not
necessary to support pretrial detention. Citing to the
Ferranti case and the Rodriguez case.
Second, Second Circuit said: Obstruction of justice
has been a traditional ground to grant detention by the courts
even prior to detention for dangerousness.
Which was instituted prior to the Bail Reform Act --
excuse me -- instituted by the Bail Reform Act.
The Court went on to talk about in the Gotti case,
that there was a single incident of witness tampering that
constituted a threat to the integrity of the trial process,
rather than more generally a danger to the community, so
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LaFontaine cited to the Gotti case.
Further in the LaFontaine case, the Second Circuit
stated: We have held, quote, the sort of electronic
surveillance suggested by the defendants can be circumvented.
Home detention and electronic monitoring, at best,
elaborately replicate a detention facility, without the
confidence of security such a facility instills.
Citing to Millan with citations and quotations
omitted. That cite to LaFontaine is 210(f)(3)(E), 125, and cite
135 Second Circuit 2000.
As this Court is aware, the factors to consider are
the nature and circumstances of the offense charged when you are
weighing whether to detain the defendant; the weight of the
evidence against the person.
Significantly in the Government's view, the history
and characteristics of the person -- which I'll spend some time
on; and the nature and seriousness of the danger to any person
or the community that would be posed by the person's release.
Another case they talked about, the nature and the
circumstances of the witness tampering in a criminal proceeding
being serious, is relatively a recent case, United States versus
Murray. It's an SDNY case from February of 2023; 2023 Westlaw
2055886.
And in the Murray case, they quote to the Supreme
Court, stating that the Government is not obligated to show that
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the defendant had any particular law enforcement officer or
officers in mind when the defendant acted, observing that
witness tampering occurs frequently and most effectively before
the victim has engaged in any communication with officers.
Another case in this district, United States versus
Fernandez, 50 F Supp. 3(b)406409, Western District of New York,
December 8, 2014. In that case the Court stated: Superseding
indictment reflects a finding of probable cause by a Grand Jury,
that the defendant engaged in witness tampering, which only
further supports a finding that the defendant presents a danger
to others in the community.
So in this case, Your Honor, I'm going to start with
this defendant's conduct towards the witness, who is the victim
of the threatening communications that are alleged in the
indictment, so a little history is warranted here.
On or about April 9, 2019, that victim/witness was
arrested by the Amherst Police Department and charged by that
department with stealing Mr. Gerace's Rolex.
That day, after being arrested, Federal agents were
contacted by a supervisor at the Amherst Police Department, and
Federal agents responded there and spoke with this witness.
In that set of conversations, the witness made
statements about this defendant, about fairness, and generally
about some of the -- some of the information that culminated in
the charges in the indictment. But to be clear, this was one of
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many witnesses. But, generally, it involved information about
drug trafficking.
Now, I'll note -- and I'll get to this later in my
presentation -- that this defendant has many contacts in law
enforcement, many friends in high places, to include State
judges, members of law enforcement, multiple prior police
commissioners of the Buffalo Police Department, police
commissioners, friends in police departments -- in local police
departments.
He has bragged to witnesses that he has contacts in
every local police department, political figures, and many
others. And we get that through our investigation through
multiple sources of information.
But what's clear here, is that on this April 9, 2019,
arrest -- I won't name the detective who made the arrest -- but
the detective who made the arrest, based upon the defendant's
complaint, is the same detective who made multiple arrests of
Mr. Gerace's ex-wife, who you've heard.
The defense named in many, many court appearances, and
even most recently in a court filing before this court: Well,
that detective was the same detective who arrested his ex-wife
on multiple occasions for various contempt charges, for conduct
that included things as innocuous as liking a Facebook post.
While that detective is the same detective that
arrested this witness, and subsequent to the arrests of Gerace's
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ex-wife, and prior to the arrest of the witness here, from text
messages in Mr. Gerace's phone, which have been turned over to
him -- this whole phone extraction has been turned over, I'll
just give you one example.
On December 20, 2018, at 19:06 p.m., Gerace texted:
"Now I've had it. Now keep in touch; we've got to get a drink."
And there was some communications about needing the phone
number.
This detective texted back that same day within the
next -- 24 seconds later: "Absolutely. Let's get a drink
soon." And then another 56 seconds later texted: "What time
you hanging out up there tonight?"
So this defendant has had the ability to have friends
of his arrest witnesses in this case.
THE COURT: Let me pause you there. I just need to --
because otherwise, I'm going to forget to come back to it.
MR. TRIPI: Yeah.
THE COURT: Is this detective that you are talking
now, the same person who alerted Federal law enforcement?
MR. TRIPI: To what?
THE COURT: To come down and --
MR. TRIPI: No.
THE COURT: Okay.
MR. TRIPI: So the detective arrests -- brings to the
station house, and then the supervisor gets involved. The
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supervisor contacts Federal law enforcement.
THE COURT: Got it. Okay. Go ahead.
MR. TRIPI: So this witness spoke with some Federal
authorities that day, was released, but Federal authorities have
no role in what happened regarding the allegation regarding the
Rolex watch.
In July of 2019, a long-time associate of Mr. Gerace
and employee at Pharaoh's attacked that witness and made
comments about speaking to the Feds.
Now, the Feds, quote, unquote, did not publicize this
witness's conversations with them. Nevertheless, she was
assaulted.
In October of 2019, the witness testified to the Grand
Jury regarding this investigation. On October 31, 2019, the
initial indictment in this case was filed under seal, charging
defendant Bongiovanni by name, but clearly referencing Peter
Gerace as co-conspirator one, and referencing a gentleman's
club.
Although at that time, the defendant was not named,
Mr. Gerace's actual cell phone number was referenced in one of
the overt acts charging Bongiovanni. That indictment was
unsealed November 5, 2019, to a great deal of media attention.
It would have been absolutely and abundantly clear to
Mr. Gerace that he was a target of a Federal investigation no
later than November 5, 2019.
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But based on these circumstances -- and I submit the
corroborating circumstances of a witness against him being
assaulted at a bar, it seems he knew well before then.
Additionally during that timeline in April, his phone
was seized at a border search, so he knew he was a target.
November 19, 2019, the defendant was with two female
associates of his, and as of that date, he'd had conversations
clearly describing this witness/victim in this indictment as a
snitch. That is, a snitch that was resulting in the problems he
was looking at Federally, being a target.
After referring to that witness as a snitch on prior
occasions, that brought -- brings us to the night of
November 19, 2019, where Mr. Gerace was with two females in his
basement.
And after having drinks with them and providing each
of them cocaine, that all three of them used, Mr. Gerace making
comments and statements about the witness in this case being a
snitch and a snitch bitch.
His colleague -- his confidante, a proxy of his, you
might say, made some messages, borrowing the other female's
phone, because this witness had taken the steps to block certain
people from her Facebook account.
But the third person in the room was not blocked, so
that provided an avenue for communications.
So the one female associate of Mr. Gerace borrows the
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other female associate of Mr. Gerace's phone, while all three of
them are using cocaine and makes statements that are stated out
loud as to what those threats are.
And it was after Mr. Gerace was making comments about
the witness. I'll read them to you, leaving out names. The
Facebook communication reads: "Hey, you ray ass bitch" -- I
believe that to be a typo, potentially. Y is next to T on a
keyboard.
"It" and then name, "I'm good to G" -- should be "good
to go." "See you, and when I do, well, use your imagination,
bitch, you snitch junkie cunt. You are a fucking funny cunt.
You do whatever for drugs. In feeling" -- should be
"I'm feeling" -- insert name of second female Gerace associate,
"in on how much of a scum bag you are. But if you want to claim
Peter's home like you deserve it, bitch.
You deserve nothing, you nasty cunt. Learn how to be
a mother, because your husband was just at my place filling me
in on how my" -- it says, "H of a pull." I believe it should
be, "pill head junkie you are.
Too bad you couldn't take" -- insert name of second
Gerace female associate -- "down. Oops. She is too smart
because you're the biggest piece of shit I've ever met.
That why" -- insert name another female -- "was
fucking your husband and being mother to your daughter, you
junkie ass pond scum.
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Plan on nothing. Peter knows better, you fucking nut.
Girl, H" -- should be U. U and H are next to each other on a
keyboard -- "Girl, you don't want to fuck with me. You know how
I get down. I hope you fucking his, cunt."
And then there are some typos. It talks about
shampoo, and then the last line is: "Ha ha, you are a joke. Go
kill yourself, you dirty cum guzzling whore."
When those messages were sent, while those three were
together, well after this woman had talked to Federal
authorities, testified in the Grand Jury, they are designed to
scare the witness.
They did scare the witness. The witness was very
familiar with Pharaoh's; very familiar with Gerace; very
familiar with his associates; very familiar with the people that
run his club, and the biker gang that he employs at his club.
It had the designated effect.
Now, December 19, 2019, the defendant doesn't stop
there. This witness is one of two females that the defendant
sues in State court in sum and substance for slander.
And in that civil law suit, which this court later
enjoined, he alleged that this witness provided false
information to the FBI, in connection with the date of her
arrest for the watch.
Notably, she didn't talk to the FBI on that day. So
the information in the lawsuit was inaccurate from the
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beginning.
But notably, that may support another charge for
witness intimidation under Title 18, United States Code, Section
1513(e), and there is support for this in the case law that
we're looking into.
That statute provides: Whoever knowingly, with intent
to retaliate, takes any action harmful to any person, including
with the lawful employment or the livelihood of another -- any
person, for providing to the law enforcement officer any
truthful information, relating to the commission or possible
commission of any Federal offense, shall be guilty of a crime.
There is a 10th Circuit case where an individual sued
his ex-girlfriend, who became a witness. The US Attorney
charged the case. The 10th Circuit affirmed the conviction.
So although the injunction that you ordered was taken
up on appeal, there might be criminal liability with respect to
even the filing of that civil lawsuit.
Obviously, Gerace is named as a charged defendant in a
very serious second superseding indictment. I'm not going to
spend a lot of time on that, because that's in front of Your
Honor and it's set for trial.
But I do think since it's never been proffered to this
Court, and you have to the consider its history and
characteristics, there are a couple of things I think the Court
should know.
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And one of them relates to some of the relationships
with some of the people that go to Pharaoh's, to include a
former State Supreme Court judge.
The law provides that "Johns", that is men who receive
sex from prostitutes, are liable for Federal sex trafficking
crimes.
They can be what are referred to as unindicted
co-conspirators. Now, this particular judge I'm talking about
is unfortunately deceased former Judge Michalski.
But it goes to show you that people in the position of
power this defendant has access to, absolutely ruin people's
lives.
One of the text messages in the defendant's phone,
that will be introduced at trial, further corroborating some of
the other witnesses that will testify, is that Supreme Court
judge texting the defendant: "You're funny. Let's get some
pussy there."
The defendant responding: "Where and when?" This is
back in 2015. And the defendant is following up with: "I want
drinks."
A former Pharaoh's dancer who will testify at trial
and who testified in the Grand Jury, will explain she began at
Pharaoh's as an 18-year-old and continued there for
approximately five years.
When she began working at Pharaoh's, she'd never used
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drugs. Within two months, she was addicted to cocaine and
heroin and began having sex in exchange for drugs and money,
with Gerace and his friends.
She explained that other dancers performed sexual
favors in exchange for drugs and money, and that managers at
Pharaoh's knew what was going on.
Gerace gave this young lady cocaine and money in
exchange for intercourse and oral sex. And she did the same by
going to a private upstairs area controlled by Gerace -- and I'm
paraphrasing; these are not quotes -- with Gerace's friends, his
brother, the DJ at his club.
This corroborated other information provided by the
ex-wife, that they have repeatedly argued to you is so
perjurious.
This young lady testified in the Grand Jury, and I
anticipate will testify at trial in sum and substance, that she
felt Gerace and others used her addiction against her to engage
in prostitution. And she had that opinion of other dancers as
well.
When asked how many times she overdosed at Pharaoh's,
this young lady said: "One time that I can remember." But
seemed to acknowledge there might have been other occasions.
Another young lady, who I anticipate will testify, was
employed there for about six years. She made statements against
her own penal interest, described girls going upstairs and Peter
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and his friends, that she knew something was going on.
Quote: For as long as they were up there, girls would
come back down and say I need a shower or a baby wipe.
Consistent with having had sex -- that's me speaking now, Judge.
When asked how many dancers were using drugs inside of
Pharaoh's, this witness said: Probably about 50. He's the
owner. He was in control. He provided some of the drugs.
Another young lady who I anticipate will testify, she
acknowledged becoming involved in prostitution though men she
met at Pharaoh's, and knew other dancers were engaged in
prostitution there as well.
I anticipate evidence about high-end prostitution for
important people in this community, to include some potential
defense lawyers.
One defense lawyer who was mentioned by other
witnesses, testified in the Grand Jury and acknowledged that
Gerace provided him with cocaine on several occasions, to
include at Pharaoh's.
That defense lawyer testified in the Grand Jury, and
they will be getting his Jencks this week.
Regarding some of the high-end prostitution, there was
evidence that Judge Michalski was one of those high-end
customers, and that he liked the female name Shelby.
So when we looked at Mr. Gerace's text communications
with that judge, Mr. Gerace texted the judge on January 4th,
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2017: "LOL. I was with Shelby."
And then he asked -- I don't know what he asked means
-- and the judge responded: "Ha ha ha ha ha."
In 2015, the New York State Police received
information that prostitution and narcotic activity was taking
place at Pharaoh's, and they began undercover operations there,
where they purchased cocaine inside of Pharaoh's in January of
2015.
The Erie County DA's office at the time, surely
unaware of the relationship between Judge Michalski and Peter
Gerace, actually went to Judge Michalski to get a protective
order to not disclose the names of identifying witnesses in the
case until trial of one of the dancers who sold drugs.
Michalski -- who I'll get into in a moment -- had, in
the defendant's prior criminal case, written a letter on his
behalf, acknowledging they were personal friends, didn't recuse,
signed the order. And then ultimately, that case went nowhere.
I don't think that was a coincidence.
Additional text messages between Michalski and Gerace
include -- in the years that that local detective was arresting
Gerace's ex-wife, he was sending screenshots of her mug shots to
the judge, who mocked her.
Who said things like: Wow. Unbelievable. Ha ha ha.
And, "She looks like crap. Give her enough rope." Those
messages were in 2019 -- excuse me -- those messages were in
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2017.
Despite that and despite knowing full well the
relationship that he had with Gerace and the witness in this
case, when his ex-wife was arrested for driving drunk and
hurting someone, the judge heard the case, took the plea.
And then only when publicity in this case started, he
recused himself prior to sentencing.
And that's just one example that I'm willing to talk
about today, of people in high places, that we submit the
defendant has been able to groom over time.
Just like females that he groomed at his club,
leveraged relationships with, and ruined lives.
That's the type of danger that maybe this Court hasn't
seen yet, but that's the type of danger this defendant poses.
So despite those text messages in 2017, mocking his
ex-wife, the judge handled her case in 2019 in October. Those
messages will be introduced before the Court, corroborating the
witnesses in this case.
But there is more to his history here. In 2005, the
defendant was convicted of wire fraud for a telemarketing scam
where he bilked elderly people out of money with the promise of
lavish prizes.
It started as a Federal plea agreement. The defendant
admitted he was on organizer. The plea was to Title 18, US
Code, Section 371, conspiracy to commit wire fraud,
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telemarketing fraud.
Among the letters on his behalf at sentencing, again,
was the deceased Judge Michalski's letter in support of
sentencing.
And then deputy police commissioner of the Buffalo
Police Department, who later was the Commissioner, including
part of the time period of this indictment, that same judge --
and I'll get to it -- also handled the defendant's custody and
name change of his son.
He had a son with a young lady, and I'll get to how he
assaulted her in a moment, but while she was afraid of him and
on the run in fear for her life, hiding out, the judge -- excuse
me -- this defendant did a pro se motion for a name change to
have his son's name changed to this name.
And that judge granted it the same day. The mother
was nowhere to be found, but, of course, it was applied for and
granted the same day.
In 2010, there was information that the defendant was
traveling with a young lady from New York City. There was a tip
that she had drugs in a false compartment, coming through the
airport.
At that time, law enforcement had a canine do a sniff.
The dog didn't alert, and they decided not to step and question.
But the information about the defendant having a
supplier throughout that timeframe, there was other information
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to suggest that, that I've reviewed in this investigation.
So looking back at that tip that didn't turn out to be
anything, I will consider asking you to consider that part of
his history.
Then while on supervised release in front of Judge
Skretny, he would have received six months in prison, five years
on supervised release, for his wire fraud conviction.
He told probation he wasn't working at Pharaoh's. He
said he was working at Pietro's. FBI had to provide probation
with information about criminality that the defendant was
involved in. That led to a probation search.
See, no offense to probation, they are spread thin,
they don't find out about crimes.
It takes more law enforcement resources and
investigation to find out, except when they get lucky and they
do a walkthrough in plain view and someone leaves a gun out.
Probation doesn't investigate crimes, Judge.
But a canine was walked through Pharaoh's, and a
canine hit several locations -- in several locations in the club
where marijuana, Lortabs were found.
The canine also alerted to two safes that were in the
club. One empty safe, and one safe that had money.
But that day, October 31st, 2009, formed part of the
violations that occurred in front of Judge Skretny.
In 2012, the defendant had a domestic incident with a
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an ex-girlfriend of his. He choked her. She stated that she
saw stars, but did not lose consciousness.
He punched her in the side of the face, and she
stabbed him. She described a violent interaction between the
two that happened in this involvement.
A year later -- approximately a year later in 2013 --
the defendant was arrested May 2nd, 2013. He was later
convicted of assault in the 3rd degree, an A misdemeanor.
It's odd, because the arrest occurs in 2013, but --
and he pleads guilty in 2013, but he wasn't sentenced, according
to his rap sheet, until October of 2016, to three years of
probation.
I've not yet looked to see what judge that case was in
front of. I don't have that information.
But regarding some of the facts of the underlying
strangulation and assault, Buffalo 911 received a call from the
woman who then said: "Never mind. Never mind." The caller
hung up, but not before dispatcher heard: "Look what you did to
my face."
The call was traced to 95 Joseph Drive. Town of
Tonawanda police officers responded and arrived at the scene,
spoke to Peter Gerace. Who stated there weren't any problems.
They then spoke to the victim, who had a black eye and
a scratch on her neck. But the victim was denying that anything
occurred and said her injuries were the result of playing catch
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with her son.
The police officers on the scene assessed that this
defendant and the female were not forthcoming with information.
Both insisted the injuries were sustained while playing catch.
Ultimately, the young lady was interviewed at the
police station, because the police noted in the reports that
obviously she was afraid to speak freely in front of Peter
Gerace and his extended family.
Reading from the excerpt from the police report:
"While at our station, she spoke at length in private with a
crisis service counselor in our family room with the door
closed.
I could hear a lot of crying and distraught discussion
coming from that room."
A little bit further: "A witness told the police that
this victim had been repeatedly a victim of ongoing domestic
abuse at the hands of Mr. Gerace for many years, and that the
daughter was very afraid of him and his family."
Witnesses further -- a witness further reported that
the defendant's seven-year-old child at the time, sometimes gets
so nervous about his home life that he vomits when he has to
return home.
A witness reported that this female had been to the
hospital on prior occasions for unexplained injuries.
They explained that one time this female victim took
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off to Florida out of fear of being killed by the defendant.
And during that time, Gerace went to court and obtained sole
custody of the child.
I've previously indicated about the name change order
that we found during a search warrant of Mr. Gerace's house,
signed the same day by Judge Michalski.
The family thought she was dead, because she was in
such deep hiding. So much so, that they recorded a Niagara
County cadaver dog search various locations for this young lady.
They were convinced that she was dead.
Yet she was still refusing to sign a police report out
of fear. Ultimately, that case did go forward, and there was a
conviction for assault in the 3rd degree.
But there is more. And this is sort of hot off the
press, Judge. Just today our office received a subpoena
response from the Small Business Administration regarding the
defendant's EIDL loan application during COVID.
It's clear from that application that the defendant
made several material false statements that resulted ultimately
in him acquiring $2 million from the Small Business
Administration, based upon material misrepresentations that are
in this application.
For example, he said he did not provide sexual
services at his business. Had he checked the box yes, it would
have been over with.
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The actual question is: Applicant does not present
live performances of a prurient sexual nature, or derived
directly or indirectly, more than through the disclosed revenue,
through the sale of products or services or presentation of any
depictions or displays of a prurient sexual nature.
So he said no, on April 5th of 2020. The loan was
funded to the tune of $150,000 in June of 2020.
Around that same time, he had applied for a separate
PPP loan and was told and acknowledged in an affidavit filed in
Federal Court, that he knew that he was advised that his
business was of a prurient sex nature.
That litigation was conducted by AUSA Michael Cerroni
before District Court Judge Lawrence Vilardo.
So as he's fighting that with the PPP people, he then
applied for a loan modification in July of 2021, asking for an
increase in his EIDL loan, E-I-D-L. And around July of 2021,
it's increased to $500,000.
Now, this is after he's told that his business is of a
sexual and prurient nature; after he acknowledged that in a
sworn affidavit in Federal Court.
And as part of the EIDL loan questionnaire that asked
of him, one of the questions asks, also, Your Honor: For any
criminal offense, other than a minor vehicle violation, have you
ever been convicted, pled guilty, plead nolo contendere or
placed on pretrial diversion or been placed on any form of
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parole or probation, including probation before judgment? He
checked no.
He was clearly a Federal felon before Judge Skretny.
He had also had a conviction for assault, which he got sentenced
to probation on. So there is another lie. And he ultimately
gets the loan funded to the tune of $2 million.
And as of July 2021, he was under Federal indictment.
So there is another question that reads: Are you presently
subject to an indictment? And he says: No.
And when he went to extend the loan, there is
questions: Has anything changed since the last time? So he
should have said yes. I am now under Federal indictment.
He indicates: No. And he gets the loan funded to the
tune of $2 million.
Now, a USA Rudroff is our office's coordinator for
COVID prosecutions. And he estimates that this is the third or
fourth largest fraud of COVID since it happened in this
district.
$2 million, that's the maximum you can get. I would
anticipate charges forthcoming in short order. We just got this
information today.
So connections with powerful people; lying; fraud;
prior fraud; prior felony convictions; endangering people;
scaring them through proxies, because he's not dumb enough to do
it directly. Presumption in the Government's favor.
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Now, the defense is going to argue: They knew about
this for three years.
What I say to that, Judge, truth does not equal proof.
It was true three years ago that through proxies, he intimidated
and tampered with this young lady.
There is a reason there is a five-year statute of
limitations; we are well within that. We now have the proof
from everyone else who was involved and the victim of the crime.
I ask that you detain him on this indictment for all
the reasons stated. Thank you, Judge.
THE COURT: While you're still there, Mr. Tripi, let
me ask you -- just about that last point about "truth does not
equal proof."
Some of the proffers about the first three counts in
the indictment are facts that I would have heard in the other
case and would have accounted for.
MR. TRIPI: I don't think I went into that depth and
detail at all. Because we're a lot closer to trial, they have
stuff now. So there's a balance, Judge.
And at that point, we only had it from the one source
-- I think -- maybe two. Certainly not all three.
We had recent testimony. And I'm not going to go much
further than that, but there's a difference.
What's the old adage? Trust, but verify. It was true
then; it's verified now. Now, there's an indictment. Now, the
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presumption is triggered.
And I didn't go into that level of detail. I know
95 percent of what I told you today, you've not heard before.
And there is always a balance with protecting witnesses. Now,
they know this stuff, I'm free to tell you more.
THE COURT: Mr. Soehnlein --
MR. SOEHNLEIN: Your Honor, it's an interesting and
salacious story, and it's the reason that we have trials.
I can't possibly respond to all that stuff, and I
don't have to respond to a lot of it, because most of it doesn't
go to detention. That's what we're here to talk about. We're
here to talk about detention.
The last date I heard the Government reference was
2019. And I might have missed it, but I think it was 2019; is
that right?
MR. TRIPI: For the stuff in the indictment, 2019 --
MR. SOEHNLEIN: '19.
MR. TRIPI: The loan stuff was 2021.
MR. SOEHNLEIN: All right. So the stuff that they're
seeking detention on is 2019. Mr. Gerace was charged -- he was
indicted in 2021.
Mr. Macaluso, he hasn't violated in any way, has he?
PROBATION OFFICER: To date -- today, no.
MR. SOEHNLEIN: You are still recommending release; is
that correct?
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PROBATION OFFICER: Because the violation -- the new
conduct was prior to his supervision, we cannot violate him on
anything, no.
MR. SOEHNLEIN: So, Your Honor, I think that's the
important place to start.
Now, to the extent that there is a presumption, okay?
The presumption is on that last count.
That last count, if you take Mr. Tripi's word for it,
is what I would consider to be a recreational use of cocaine.
Even on its best day, it is three people together in a basement
using cocaine together.
We're not talking about bricks of cocaine; we're not
talking about firearms; we're not talking about helicopters
coming from Miami. We're talking about three people in a
basement, okay.
That's the count that triggers the presumption. And
the presumption is rebuttable. And it's rebutted by the last
two and however many months that Mr. Gerace has been on
supervised release without re-offense, Your Honor.
The proof's in the pudding. There are terms and
conditions that guarantee his return to court, the safety of the
community, and he hasn't shown that he won't abide by any of the
numerous protective orders.
Now, the Government wants timelines. I like timelines
too, Judge. I like timelines a lot. This conduct's allegedly
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in November of '19, December of '19.
Mr. Gerace gets charged in 2021. The Government
references it in proffers for a while -- and I wasn't part of
the case then, but I've read them.
And what happened in this case three days ago, we made
a motion to allow Mr. Gerace an opportunity to see some of the
3500 material to assist in defense at trial.
Those motions are under seal -- I'm not going to go
into them. I'm certainly not going to name names, certainly not
people who aren't here, people who may be deceased.
But, Your Honor, it's a little suspicious that having
that information for that long, this indictment comes three days
after we try to give Gerace a fair opportunity to prepare his
defense for the trial that's imminent and serious. It's going
to be a fight for his life, Your Honor.
So, Your Honor, there are terms and conditions that
exist. There is a presumption that has been rebutted;
probation's consenting or recommending his release.
And I think those terms and conditions should be
continued, Your Honor.
MR. TRIPI: Can I have a moment, Judge?
MR. SOEHNLEIN: That's all I have. I can't go on as
long as he has.
THE COURT: Thank you, Mr. Soehnlein.
MR. SOEHNLEIN: Thank you, Judge.
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THE COURT: Give me one second, Mr. Tripi.
All right, Mr. Tripi.
And then I'll give you the last word, Mr. Soehnlein.
MR. SOEHNLEIN: Thank you, Judge.
MR. TRIPI: I'll be very brief, Judge.
As to the last point, and I made reference to it, but
I just want to put a fine point on it.
Probation only knows if the defendant tested positive
for cocaine, and he hasn't.
And they only know if he's where he's supposed to go
to include on this earned leave, that nobody in my office knew
existed for 20 years and apparently is a thing.
He can go to the casino, and he has. He can go to
Sabres games, and he has. He can go to dinner, and he does.
And as long as he's got access to his cell phone; as
long as he can see people in public places; as long as he can
speak to people; as long as he can use a computer, he's a danger
through proxies.
And that's what some of the case law I talked about,
we talked about -- that's why witness tampering is so important.
It goes to the integrity of the proceedings that we do here.
There are other acts of witness tampering that are
under active investigation.
As to timelines, well, the last witness testified in
the Grand Jury on March 16th, before that motion was granted.
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After that, there is an internal approval process to
get an indictment approved. And the last day of the Grand Jury
was yesterday. So we didn't know that motion was coming.
So that's a coincidence -- an interesting coincidence,
but that's all it was.
One other thing: You know, there is one young lady
who is a witness in the case, who was charged, and all of a
sudden had people who never represented her as a lawyer -- and
she's represented by a lawyer, texting her about if she needs
legal counsel because a member of the defense team is concerned
about the Government threatening and intimidating her.
I can assure you the Government doesn't threaten and
intimidate witnesses. We investigate that conduct.
And unsolicited texts from attorneys to people who are
already represented, raises issues ethically, maybe even
obstruction.
And I'm certainly not saying that Mr. Soehnlein was
involved in any of that --
THE COURT: Tell me more about that vignette. When
did that happen, Mr. Tripi?
MR. TRIPI: That happened after the young lady who
sent these messages was charged in a public complaint and before
she came in for her first proffer with the Government.
And her attorney has represented to us -- I believe
this is accurate -- someone interrupt me if I'm wrong -- that he
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has represented her on every case.
So this attorney reaching out, claiming he represented
her before, seeing if she is okay -- he mentioned he talked to a
specific member of Gerace's defense team who said to check in on
her -- and I'm paraphrasing -- because they were concerned about
the Government intimidating her.
Now, there is a member of the Gerace defense team,
that there is other interviews happening of witnesses, of people
who are employed by Gerace.
Those interviews are happening at Pharaoh's. Think
about that coercive nature. "Come talk to my attorney at
Pharaoh's", the site of the crime, which I'm now allowed to go
to, "and fill out a questionnaire."
Do you think we're getting accurate information from
people in that setting? I don't.
Those are the types of things that are being reported
to us, Your Honor.
Those are the types of things that should be happening
in law offices, not at Pharaoh's.
THE COURT: Is it your position, Mr. Tripi, that the
factual recitation that I heard from you here today, is much
more fulsome than the factual recitation that I heard from you
in 19-CR-227?
And I guess I'm getting back to your earlier comment,
before you sat down before, which is that -- is it the
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Government's position that the timeline of the other case, being
where we were back then --
MR. TRIPI: Yes.
THE COURT: -- that it was the Government's election
not to disclose those details to the defendant at that time, and
potentially weigh that against detention versus a release?
MR. TRIPI: Yes. Well, first, I didn't have all the
details.
THE COURT: Right. Some of them you certainly did.
MR. TRIPI: Some of them I did. I don't have the
transcript in front of me, Your Honor, but I can tell you that
initial information was similar in nature.
About a year and a half to two years later in 2021, we
get a second witness, and this month or early last month, we got
a third witness. So along that timeline, the Government learned
additional information.
And so I don't know exactly which transcript you're
looking at, so I don't want to misstate it.
THE COURT: Yep.
MR. TRIPI: But certainly, as I sit here today, there
is more information the Government knows, and believe it has
proffered more information.
For example, we didn't have information about him
repeatedly talking to this woman about her being a snitch. We
had the message.
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I probably told you the substance of the message, but
all this other stuff about him blaming this young lady, as well
as another young lady.
And at one point, he blamed his now co-defendant
Bongiovanni. He blamed those three people for being snitches,
for him being a target.
THE COURT: And who is he telling that?
MR. TRIPI: To one of the witnesses in this case.
THE COURT: Okay.
MR. TRIPI: And so that's certainly all new
information that we acquired in the last month or so.
THE COURT: That loan application is brand new?
MR. TRIPI: We got that today.
THE COURT: And what about Michalski thing yet, if you
will. Is that material that was at the time --
MR. TRIPI: That, I don't know. I don't know what
date of the transcript you're looking at, Judge, but certainly
it took a while to locate those text messages.
I didn't have that at the time. And the Michalski
search warrant, I believe, was earlier. I don't remember the
date of the Michalski search warrant, although it was one of the
last ones we did.
So a lot of this -- there is a lot of information
we've been grinding through. We've been grinding through it.
That was an active investigation too.
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I would have been constrained to be able to say a lot
of that, because we were under an active investigation of a
judge -- a sitting judge.
But certainly, more has been learned since any last
proffer.
I know for a fact that I didn't have all of this
information on the one hand.
And on the other hand, to the stuff that I did have, I
would have been concerned about witness safety and identifying
people through my proffers.
THE COURT: So a little bit of both.
MR. TRIPI: A little bit of both. I got the dates
here. The Michalski search warrant, that we obtained in Federal
Court, was signed on March 23, 2022.
So I don't know how that compares to whatever
transcript you're looking at, Judge, but --
THE COURT: Mr. Soehnlein, last word on the proffers,
if you will.
And in that process, tell me why -- I'm just calling
it a vignette for lack of a better term -- but the Michalski
details or vignette, and the loan application vignette, why
don't those issues matter to me?
MR. SOEHNLEIN: They don't go to detention, Your
Honor.
THE COURT: Why not?
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MR. SOEHNLEIN: Because detention is about return to
court and safety of the community, Your Honor.
To the extent we're talking about safety of the
community, the Government has almost made your point for you.
They talked about him going to a Sabres game; they
talk about him going to the casino. They're watching him here.
It's not just probation that's watching him.
If he would have violated, don't you think they would
have charged him additionally in something less after 2019?
Where is that proof? They are watching him all the
time, Your Honor. Why aren't you hearing about that?
Why aren't you hearing about him improperly, you know
-- in terms of the content of the messages in the indictment,
Your Honor -- now, I don't have a copy of the messages, but I
heard them just like you did.
I heard the person sending the message making a
threat. I heard that. But I didn't hear anything that tied it
back to Gerace.
I heard references to Gerace. But the threat, as I
understood it, came from the person sending the message.
Nowhere did I hear: "Oh, you know, Peter is going to
take you out." "Peter is going to do physical harm to you."
That's not in the message, Your Honor. It's not there. They
don't have that.
And the law, Your Honor, should favor release in these
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situations. He's been out since 2021.
Terms and conditions exist that allow him to prepare
for his case, which is imminent, that safeguard the community
and ensure his return to court, which is exactly where we are,
Your Honor.
What we're talking about are not things that are
recent, not things that occurred when he was under supervised
release.
And, Your Honor, the fact that the Grand Jury
concluded yesterday, our motion to get -- to obtain access to
discovery in his prior case was earlier this week, I think is
more than just a coincidence, Your Honor.
I -- look, I take issue; the Government is going to
take issue with me making issue with this. I take issue with
them having an issue with defense attorney interviewing
witnesses.
That's a critical part of a defense attorney's job. I
don't think there is anything coercive of that.
I haven't been involved in any of that, but I don't
know there is anything wrong about it, and I will never
acknowledge that -- that there is, Your Honor. I take issue
with them even bringing that up as part of a proffer.
A lot of the other proof, Your Honor, is proof that we
are going to vet in this incredibly lengthy trial that we are
going to have, okay?
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Where there's explanations, and where Mr. Gerace will
have an opportunity to fully and fairly defend himself.
The Government's proffer, Your Honor, is new to you.
It's just as new to me. It's just as new to him, their spin on
these facts.
Because this material that we're talking about, we
don't have all of it. We don't have the most important stuff
yet. The Government is not rushing to turn it over.
And to the extent that we are getting important things
and we want to try to share them with our client, now we have
this indictment in an attempt to detain Mr. Gerace, presumably
through that June trial.
So, Your Honor, the proof is in the pudding here.
There is no allegation, as near as I can tell, that he -- that
Peter Gerace has done anything wrong while he's been on release
for the other Federal case since 2021.
And so I'm asking you to continue those terms and
conditions, Your Honor. He knows he's being watched. He triple
knows that he's being watched now.
THE COURT: Right. And so it's safety to the
community, if you will.
And I'm going to dovetail with that is whether I've
got the confidence level that he can abide by the conditions
that go to that.
And so on the one hand, really, what we have is a
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record of compliance.
MR. SOEHNLEIN: Yes, Your Honor.
THE COURT: And on the other hand, what we also have
is an easy detention argument in almost every other case. So
that's where I am right now.
MR. SOEHNLEIN: But, Your Honor, the detention
argument -- I don't think it's that easy.
Because the facts that would normally support
detention, the case law says that you detain a person in this
situation: One, either because it's a large scale narcotics
trafficking crime.
That's not what he's charged with in the new
indictment, okay? So let's put that one aside. Recreational
use is what we're talking about.
The second thing is: Threat to the trial process.
Threat to the trial process. That's the LaFontaine. Threat to
the trial process.
He's been released for two and a half years awaiting
trial. There has been no threat. The alleged threat came
before the indictment, came a year before the indictment, Your
Honor. That's what we're talking about. Threat to the trial
process. There is none.
And so that's why I'm asking you to continue the terms
and conditions, Your Honor.
MR. TRIPI: I would just take issue with the record of
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compliance.
As I stated, probation would have no way of knowing
that he appears to have committed fraud to the tune of $2
million to the Small Business Administration while under this
Federal indictment.
That crime alone would have at least a 46 to 57 month
guideline range, if he's a criminal history category one. He
might be a two. That's irrespective of the life he's facing on
the indictment 227 and the indictment here.
MR. SOEHNLEIN: May I be heard on that, Your Honor?
This is the first that we're hearing of this.
I spoke with Mr. Gerace on a sidebar, okay? We
believe that there is a lot more to that story, that there is a
lot more nuance around the loan application.
We believe there is a lot more communication with the
Federal authorities around the loan. He's not charged with it.
I don't have the loan application in front of me here.
I'm learning this as I go, Your Honor.
But to the extent you are going to rely on that, I
would ask to have the loan application, and I want to have a
hearing on it, Judge.
MR. TRIPI: Second Circuit allows Government proffer,
and that's what we're doing.
THE COURT: And so what I'm looking at here and what
is new, Mr. Soehnlein, I have facts going to the nature and --
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and, kind of, the history and characteristics of the defendant.
So that's what I'm weighing on the one hand versus
compliance on the other.
Do you want to speak to that?
MR. SOEHNLEIN: I do, Your Honor. Because this is not
something that's new today.
Your Honor, the Government has referenced these text
messages in the past, is my understanding. I was not involved
in the case at the time, but I have read the transcripts, and I
certainly have read the local media, that have made reference to
what I assume to be these text messages.
These are 2019. The Government's had them for at
least three years. The indictment is new. The text messages
are not new.
The content of the text messages are not new. What's
new is what Mr. Gerace has done while he's been released.
Mr. Macaluso, do you feel that you do a good job
supervising Mr. Gerace?
PROBATION OFFICER: Your Honor, just to speak in terms
of probation --
THE COURT: Yep, yep. I'm going to give you a chance
now. So why don't you go ahead, Mr. Macaluso, and tell me what
your position is generally.
PROBATION OFFICER: Yeah. Mr. Gerace has had a very
high level of supervision. He is on GPS. He is monitored 24/7.
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We've done unannounced home contacts; unannounced work
contacts; unannounced drug and alcohol tests. All have been
negative. We view his maps daily, weekly, monthly, in terms of
his GPS mapping.
He was on home detention, and then he was switched
over to curfew. Since he's been on curfew and even home
detention, there's been no occasion of violations, where he's
stepped out of the house or had any curfew violations.
All tests have been negative, and he's followed all
release conditions in terms -- as they've been set forth by this
Court.
So there has been no non-compliance on our end in
terms of his supervision and following the rules set forth by
Your Honor.
MR. TRIPI: Judge, stated another way, they know he
hasn't tested positive for drugs, and he goes to dinner where he
says he's going. And he's got this earned leave that allows him
to do that.
PROBATION OFFICER: Well, he's on curfew now, Your
Honor, so he can come and go as he pleases.
MR. TRIPI: Oh, he's even less. Earned leave was when
it was supposed to be detention. Now, it's just come and go
whenever you want.
PROBATION OFFICER: He's on a 6 a.m. to 8 p.m. curfew
as you set, Your Honor.
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THE COURT: So the last thing you said, Mr. Soehnlein,
was about not having seen the loan application related
documents.
And I want to be sure: Are you asking to continue
this detention hearing or not?
MR. SOEHNLEIN: In the event that Your Honor is going
to rely on the loan applications and the allegations around the
loan --
THE COURT: I'm going to rely on everything that I've
heard here.
MR. SOEHNLEIN: You are going to rely on everything
you've heard? Then, Your Honor --
THE COURT: So you have think about that,
Mr. Soehnlein, as well. So talk to your client, if you like.
MR. SOEHNLEIN: Thank you, Judge.
(Discussion off the record.)
MR. SOEHNLEIN: Thank you, Your Honor. I've spoken
with Mr. Gerace, and we would like to continue the hearing.
I'd like an opportunity to see the loan and further
opportunity to review the Government's lengthy proffer in
support of detention.
THE COURT: Okay. So the loan application you will
get from your own client, I assume. And then you will ask the
court reporter for the transcript? Is that what you are telling
me?
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MR. SOEHNLEIN: I'm going to ask the Court for a
transcript, yeah.
THE COURT: Okay. All right.
So do you have anything to say on that application for
a continuance, Mr. Tripi?
MR. TRIPI: No, Your Honor. I have no objection to
the defense request, and we'll have no problem giving them the
loan application, if that's easier.
THE COURT: Okay. During the continuance, the
defendant shall be detained under the statute.
You are aware of that, Mr. Soehnlein?
MR. SOEHNLEIN: I spoke with Mr. Gerace, and we
understand that.
I also spoke with Mr. Macaluso from probation. And
probation indicated that in the event that Your Honor were
willing to do so, they would be able to coordinate home
confinement for Mr. Gerace during the period of time, until you
could get him back.
I don't have my Federal statute book immediately in
front of me to know whether or not there is an exception or not,
Your Honor.
And I would love an opportunity to research and be
heard on that, but I can only report to you basically the facts
as I know them.
THE COURT: Right. And the way I read subsection (f)
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of 3142, you don't have a lot of wiggle room there in this
posture.
Mr. Tripi, do you see it the same way?
MR. TRIPI: Yes, Judge. I think he shall be detained
pending the determination of the Government's motion for
detention.
THE COURT: Well, where I'm at is the flush language
after (2)(b): During a continuance, such person shall be
detained.
MR. TRIPI: Yes. Up to three days, if there is a
Government request for adjournment, and five days if the defense
requests it.
THE COURT: Right. So we can come back here pretty
early next week, if you like.
MR. SOEHNLEIN: I would like, Your Honor.
THE COURT: All right. We can get you in probably
Monday.
MR. SOEHNLEIN: That sounds good.
THE COURT: Everybody okay, Monday afternoon?
MR. TRIPI: I think so, Judge.
MR. SOEHNLEIN: Yes, Judge.
MR. TRIPI: Let me see if there is a time conflict.
THE COURT: All right. How about 1:30?
MR. TRIPI: That will be fine. Thank you.
MR. SOEHNLEIN: That's fine.
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THE COURT: Okay. And I think either way -- I'm
granting the motion for a continuance. We'll see you on this
issue to be continued Monday at 1:30.
I should tell you now, though, that Judge Roemer is
ready for you on Tuesday for a schedule. So either way on
Monday, you will be seeing Judge Roemer at 2:00 o'clock on
Tuesday for scheduling and whatever else you need to talk to him
about.
MR. TRIPI: Okay.
THE COURT: So that's Judge Roemer piece of it.
Speedy trial does not need to be addressed because of the
continuance and --
MR. TRIPI: The pending motion for detention, Your
Honor.
THE COURT: We've got the pending motion for the
detention, yeah.
Should we adjourn the Curcio, step one, or should we
do it now, the status conference on the Curcio, the thing that
was scheduled for 3:00 o'clock today?
We can do it now, or we can do it after our
continuation on Monday afternoon.
MR. TRIPI: I'll defer to Mr. Soehnlein.
MR. SOEHNLEIN: I don't feel strongly about it, Your
Honor. Whatever you want to do.
THE COURT: Why don't we do it then.
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MR. TRIPI: Okay.
THE COURT: Why don't we do it then. All I would do
now is a little bit and then call somebody like maybe Kevin
Spitler, since he was the Curcio counsel last time, I would
reach out to him.
In the meantime, Mr. Tripi, bring with you your
conflict list maybe?
MR. TRIPI: Yes. I'll work on that. I'll get that
squared away.
Judge, the only thing I want to flag was --
THE COURT: I know. I'm flipping kind of over into
the other case, which we haven't even called yet so --
MR. TRIPI: There may be a need for -- just depending
on Your Honor's thoughts, also someone to be contacted for the
witness, potentially, that created the issue.
THE COURT: Okay. Just be mindful of that on the
Curcio side of things.
And my plan would be to call Kevin Spitler, if that --
if for some reason he's conflicted out now, I need to know that.
MR. TRIPI: I don't believe he is, but I'll double
check.
THE COURT: All right. Anything else on this 23-CR-37
case?
MR. TRIPI: No, Your Honor. Thank you.
MR. SOEHNLEIN: Nothing else, Your Honor. Thank you.
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THE COURT: Okay, folks. So in the meantime,
Mr. Gerace is going to be in Marshal's custody, I believe, at
this point.
No?
MR. TRIPI: He is -- I think that that -- thank you,
Your Honor.
THE COURT: Yes? Okay. All right. Very good. Thank
you.
MR. TRIPI: Thank you, Your Honor.

(Proceedings concluded at 2:18 p.m.)
* * *
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In accordance with 28, U.S.C., 753(b), I certify that these
original notes are a true and correct record of proceedings in
the United States District Court for the Western District of
New York before the Honorable John L. Sinatra, Jr.
s/ Bonnie S. Weber March 25, 2023
Signature
Date
BONNIE S. WEBER, RPR
Official Court Reporter

United States District Court
Western District of New York
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EXHIBIT D
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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
UNITED STATES OF AMERICA, *
Docket No.
1:23-cr-00037-JLS-MJR-1
*
*
Buffalo, New York
v.
*
March 27, 2023
*
1:36 p.m.
*
PETER GERACE, JR.,
*
DETENTION HEARING
CONTINUATION
*
Defendant (1). *
*
* * * * * * * * * * * * * * *
TRANSCRIPT OF PROCEEDINGS
BEFORE THE HONORABLE JOHN L. SINATRA, JR.
UNITED STATES DISTRICT JUDGE
APPEARANCES:
For the Government:
TRINI E. ROSS,
UNITED STATES ATTORNEY,
By DAVID RUDROFF, ESQ.,
JOSEPH M. TRIPI, ESQ.,
NICHOLAS COOPER, ESQ.,
Assistant United States Attorneys,
Federal Centre,
138 Delaware Avenue,
Buffalo, New York 14202,
Appearing for the United States
And
JORDAN ALAN DICKSON, ESQ.,
U.S. Department of Justice,
Criminal Division,
Public Integrity Section,
1331 F Street NW,
Washington, DC 20004.
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USA v Peter Gerace, Jr. - Proceedings - 3/27/23

2
For the Defendant:
LIPPES MATHIAS WEXLER FRIEDMAN, LLP,
By ERIC M. SOEHNLEIN, ESQ.,
50 Fountain Plaza,
Suite 1700,
Buffalo, New York 14202
And
TIVERON LAW, PLLC,
By STEVEN M. COHEN, ESQ.,
TYLER J. ECKERT, ESQ.,
2410 North Forest Road,
Suite 301,
Getzville, New York 14068.
The Courtroom Deputy:
KIRSTIE L. HENRY

The Court Reporter:
BONNIE S. WEBER,
Notary Public,
Robert H. Jackson Courthouse,
2 Niagara Square,
Buffalo, New York 14202,
Bonnie_Weber@nywd.uscourts.gov.

Proceedings recorded by mechanical stenography,
transcript produced by computer.
(Proceedings commenced at 1:36 p.m.)
THE CLERK: All rise.
The United States District Court for the Western
District of New York is now in session. The Honorable
John Sinatra presiding.
THE COURT: Please be seated.
THE CLERK: The Court advises parties and listeners
that they are strictly prohibited from recording these
proceedings in whole or in part by any device.
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USA v Peter Gerace, Jr. - Proceedings - 3/27/23

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In United States versus Peter Gerace, Jr., case number
23-CR-37, we're here for a continuation of a detention hearing.
Counsel, please state your appearances for the record.
MR. TRIPI: Joseph Tripi, David Rudroff, and
Nicholas Cooper for the United States. Good afternoon,
Your Honor.
MR. SOEHNLEIN: Good afternoon, Your Honor.
Eric Soehnlein for Mr. Gerace.
MR. COHEN: Good afternoon, Your Honor.
Steven M. Cohen and Tyler Eckert for Mr. Gerace.
THE COURT: Okay. Good afternoon, Counsel. Good
afternoon, Mr. Gerace.
Did I miss somebody who needed to make an appearance?
MR. HARRINGTON: James Harrington. I'm here just
observing.
THE COURT: Okay. All right. Just pick a better
seat, Mr. Harrington? That's all? Did you just pick a better
seat?
MR. HARRINGTON: Yep.
THE COURT: Got it. All right.
So we're going to pick up where we left off on Friday
in this detention hearing.
And, Mr. Tripi, have you supplied the loan documents
to Mr. Soehnlein?
MR. TRIPI: Yes, we did.
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THE COURT: Okay. Is there anything I need to know
further on those loan documents from you, Mr. Tripi, or you,
Mr. Soehnlein?
MR. TRIPI: Not from us. If you have anything from
Mr. Soehnlein, I would like an opportunity to briefly respond.
MR. SOEHNLEIN: Well, Your Honor, this is the
continuation of the detention hearing. And with reflection, we
have a lot to say.
With respect to the loan documents, Your Honor, there
is a number of factors that the Court needs to consider, but I
think they demonstrate more of history of compliance than they
do any effort to not comply with the law or not to comply with
supervised release.
As Your Honor may understand, the EIDL program was
part of the Federal Government's COVID outreach program -- part
of the COVID Assistance Program.
Mr. Gerace, like many other business owners, was
solicited by a private bank to apply for that. Mr. Gerace
worked with that institution to fill out the application.
He worked with his accountant. He worked with a loan
broker through that institution. He didn't fill out any of the
applications on his own, Your Honor. That was the initial
application.
Over time, as the program became reauthorized,
Mr. Gerace also engaged the help of HoganWillig Law Firm. And
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that law firm, at times, assisted him in preparing the
applications.
The actual questions on the applications, Your Honor
-- and I can't emphasize enough that this is an online
application; this is not a paper application, okay.
And I also can't emphasize enough that this is a COVID
era program. Meaning -- I don't want to say things are the Wild
West, but things are not necessarily well understood.
The questions with respect to whether or not his
business would have had to tick a box because it was sexual
nature, things like that; Mr. Gerace has a good faith basis to
believe he didn't have to click that box.
Both by the volume of sales -- because most of the
revenue from his business doesn't come from dances or things of
that nature, and also in understanding from the loan officers
and other professionals that he had engaged to fill out that
application.
With respect to the felony conviction, it's
Mr. Gerace's belief that he only had to check that box if the
felony was in the last ten years, and at the time that he was
filling out the application, it was not.
Once again, he has a good faith basis for relying on
the assistance of others, professionals, in that regard.
And finally, Your Honor, with respect to the
Government's point that somehow the PPP denial, you know, his --
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Mr. Gerace's denial of the PPP loan should have played into the
EIDL process, that was not in any way communicated or consistent
with the advice that he got when he was applying.
So, Your Honor, with respect to those EIDL loans, to
the extent there is anything wrong with them, you know,
Mr. Gerace has a good faith basis for believing he did
everything right.
More importantly, Your Honor, this is not a grant;
this is a loan. Mr. Gerace has been repaying it monthly with
interest.
There is no allegation that the money was used
improperly. He continues to make payments every month. He has
not heard from anybody, whether it be the SBA or the Department
of Justice or otherwise, before court on Friday, that there was
anything wrong with this application or the process that he
followed.
Your Honor, with reflection, we also have a number of
comments on other proof that was offered by the Government on
Friday.
Having had an opportunity to review it with
Mr. Gerace --
THE COURT: Hold on there. Let's do one topic at a
time.
So Mr. Tripi, regarding the loan applications, any
response?
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MR. TRIPI: Yes, Your Honor. As I indicated on
Friday, there is an online application and all of Mr. Gerace's
information to include phone numbers; his e-mail address is
entered in there.
And the question asks: Applicant does not present
live performances of a prurient sexual nature -- sexual nature
or derived directly or indirectly more than de minimis gross
revenue through the sales of products or services, or the
presentation of any depictions or displays of a prurient sexual
nature.
And that box is answered: Yes. In other words,
denying that he's involved in that business.
Now, all the information suggests Mr. Gerace filled
this out. But if you have someone in your agency filling it out
for you, you are responsible for making sure that it's accurate.
So I guess that will be a defense for another day when
this case is charged, but from the bail report in this case,
Mr. Gerace reported, I think, making $45,000 a month.
So Pharaoh's was his employment. He reported, I
think, making $45,000 a month as the hundred percent owner of
Pharaoh's.
And it's a strip club, so I don't understand how he
can answer "yes" to: Applicant does not present live perform --
performances of a prurient sexual nature.
Now, then it gets on -- and if he would have checked
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no, the online portal would not have allowed him to progress
with the application.
So if he acknowledged that that's what Pharaoh's was
about, he wouldn't have been able to proceed past that screen.
MR. SOEHNLEIN: Your Honor, if I may be heard on that
point?
THE COURT: One topic at a time, Mr. Soehnlein. I'll
come back to you and give you the last word on it.
MR. TRIPI: So then there is another question on
there: Applicant is not engaged in illegal activity. And he --
it's "yes".
We contend that that also was a false statement. That
Pharaoh's was engaged in illegal activity, as reflected by the
indictment, that would have been returned some time after that.
But at the -- at the -- one of the last questions is
-- it's very clear -- not within the last ten years or -- it's
for any criminal offense: Other than a minor vehicle violation,
have you ever -- so two words -- any and ever.
I mean, he went to St. Joe's, so he understands what
those words mean.
Any criminal offense: Have you ever been convicted,
pled guilty, pled nolo contendere, been placed on pretrial
divergent, or been placed on any form of parole or probation.
It's "yes" to all of those things. He was on
supervised release. He was -- for his Federal conviction. He
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was on probation for his State assault conviction.
He was convicted of a State misdemeanor. He was
convicted of a Federal felony, so all of those should have been
"yes".
And if he had someone filling out the form -- which, I
highly doubt -- for him, they are under the obligation to do it
accurately.
He's responsible, but -- see, in our responses we also
obtained documents regarding his communications with the SBA.
And it's Mr. Gerace, at his e-mail address, at yahoo.com,
e-mailing them.
It's Mr. Gerace, calling -- and we have their
communications -- about his loan.
It's on -- when he asks for -- in June -- June 10th,
he reaches out to them to check on the status of his April 5th,
2020 loan.
And there's notes in there. So he's the one reaching
out, and then he's the one who signs the loan documents on
June 12th, 2020.
THE COURT: Which statements -- in the meantime, while
we're waiting for the ELMO to boot up -- which statements,
Mr. Tripi, were made in July of 2021, after Mr. Gerace was on
pretrial release on the 19-CR case?
MR. TRIPI: You want me to fast forward to 2021?
THE COURT: Yes.
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MR. TRIPI: Yes. So on August 7th, he signed a loan
modification to increase the loan. So just real quick, before I
jump right to that --
THE COURT: All right.
MR. TRIPI: I'm showing you the document for the
June 12th application, which he signed it. He's signing: Peter
Gerace, owner/officer, June 12th.
Now, I'll fast forward to the 2021 --
THE COURT: And for chronology's sake, Mr. Gerace is
arrested and put on pretrial release in the 19-CR case, when in
2021 -- March?
MR. TRIPI: He was arrested -- the indictment was
returned, I believe, February 25th. He was arrested by March
5th, 2021 and put on release conditions.
THE COURT: All right.
MR. TRIPI: All right. So fast forwarding to the
August 7th.
So August 7th, he signs a loan modification, which I'm
putting up on the screen now. "Peter Gerace", he signs it.
It says that the undersigned agrees to be bound by the
terms and conditions herein during the term of this loan, and
further agrees that no provision stated herein will be waived
without prior consent of the SBA.
In bold: Under penalty of perjury of the United
States of America, I hereby certify that I am authorized to
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apply for and obtain a disaster loan on behalf of borrower in
connection with the effects of the COVID-19 emergency.
It's signed by Peter Gerace in his personal capacity,
Pharaoh's GC, Inc.; August 7th, 2021.
By that point, he's been on pretrial conditions set by
a Florida magistrate judge and Judge Roemer for about five
months. He's clearly indicted.
THE COURT: And when are the denials of the
indictment, supervised release, parole, et cetera -- when are
those denials occurring?
MR. TRIPI: Those denials occurred during the initial
application, but there is also in this loan document here, there
is a statement -- I just need to find it -- certifying that
all -- there's been no substantial adverse change in borrower's
financial condition since the date of the application of this
loan.
Adverse changes include, but are not limited to
judgment liens, tax liens, mechanics liens, bankruptcy,
financial reverses for arrest or conviction of a felony, et
cetera.
So here's the certification that precedes that suture
/THA*EUFPBLG that I just showed you. And it reads, as I just
stated: Borrower certifies that there has been no substantial
adverse change in borrower's financial condition -- I'm skipping
over the parens -- since the date of the application of this
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loan -- which I stated previously was the April 5th, 2020 --
adverse changes include, but are not limited to judgment liens,
tax liens, mechanics leans, bankruptcy, financial reverses,
arrests, or conviction of felony, et cetera.
All representations in the borrower's loan
application -- and that would date back to the original
application -- including all supplementary submissions are true,
correct, and complete, and are offered to induce the SBA to make
this loan.
No claim or applications for any other compensation
for disaster losses has been submitted to or requested of any
source, and no such other compensation has been received, other
than that which borrower has fully disclosed to the SBA.
Now, we will have to look further into that, because
he was separately looking into PPP, so that might raise that --
that question as well.
THE COURT: All right. Let's wrap up on the --
MR. TRIPI: On the loan?
THE COURT: -- on the loan issue. Anything else from
you, Mr. Tripi?
MR. TRIPI: No, Judge. I'll end it there.
THE COURT: Mr. Soehnlein, last word on the loan
issue --
MR. SOEHNLEIN: Unfortunately, it's going to be more
than a word, Your Honor. I apologize, but I think I need to
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make the record clear on this.
The loan application, Your Honor -- the original loan
application, it's done online. Mr. Gerace is doing it in
consultation with other experts.
The reapplications come when the private bank that the
loan is made through solicit people like Mr. Gerace for
additional funds.
The additional funding comes so easily; it's click the
box. It's check-the-box-type stuff.
Maybe, Your Honor, maybe Mr. Gerace missed something,
although we don't think he did, okay? We think that he relied
in good faith on his experts and consultants.
More importantly, Your Honor, I don't think that this
issue speaks to detention. To the extent that there is anything
that may have been done wrong, Mr. Gerace did it in error.
It doesn't evidence dangerousness. It doesn't
evidence any desire to violate supervised release terms, and we
believe that the story shows a desire and an effort to comply,
which is exactly what probation has told you Mr. Gerace has done
while he's been on supervised release, Your Honor.
I'm hard pressed to find a case in this district where
probation has taken a position that the defendant should be
released, and the Government has taken a position, as here, that
probation doesn't do a good enough job.
That's a novel one to me, Your Honor. Particularly
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given the high degree of supervision that Mr. Gerace has
experienced, including the monitoring, the GPS monitoring, and
things like that.
I simply don't think that this issue speaks to
detention. It doesn't speak to dangerousness. It doesn't speak
to witness tampering. It doesn't speak to return to court. It
doesn't speak to safeguarding the community, Your Honor.
I believe that this is a red herring to try and keep
Mr. Gerace incarcerated through the trial.
THE COURT: Well, we've kind of painted Mr. Macaluso
in a box. He was never consulted on Friday about his
recommendation in this 23-CR case, and it's on my list of things
to do to ask him.
Mr. Macaluso, in the 23-CR case, does probation have a
recommendation?
PROBATION OFFICER: Yes, Your Honor. We would
recommend that he be released on all his previous conditions,
based on -- there is no violation here, because the conduct is
from 2019 and his supervision started in 2021.
And as previously stated Friday, the two years he's
been on supervision, he's had no violations. There has been no
positive drug tests, no issues.
He's been extremely compliant in terms of the
conditions set by this court. He's moved from home detention to
curfew, and he's been doing well.
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THE COURT: Thank you, Mr. Macaluso.
All right. Is there anything left? I see there's
something new on the overhead.
MR. TRIPI: I put something on the screen, Judge,
because -- this is just one example of Mr. Gerace calling on
April 21st. This is the note from the SBA.
Mr. Gerace called in regards to requesting more funds
April 21st, 2021 via e-mail to -- and it gives the e-mail.
There has not been anything since, so this is him following up.
Mr. Gerace was the one doing this activity.
And just to answer the probation issue for a moment;
there are plenty of times when we disagree with probation.
I'm unaware of a case where someone has a pending
indictment and is charged with witness tampering, and the
Government has proffered continuing criminal activity, that went
undetected by probation, where the person was not detained and
where probation had not reversed their recommendation to some
extent, and so that's new for me.
THE COURT: All right. The next topic is something
else that caught my eye when I was reading the transcript from
Friday.
And that is -- this suggestion, it's at pages 36 and
37, but I'll just give you the topic and I kind of want to walk
through this a little more slowly.
It's the proffer where someone -- some lawyer in town
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is contacting one of your witnesses, Mr. Tripi, and offering
himself to that witness in case she needs representation.
Somebody who -- a witness who is represented already.
And the way I kind of read that proffer -- and you're going to
give it to me again -- is that that defense lawyer says that
he's already spoken to someone on Gerace's team, and he's
reaching out to see if she needs counsel.
And, obviously, the concern there is -- even just from
the ethical side is -- is you can't thrust yourself upon a
client, unless you've represented that client beforehand.
Mr. Tripi, did I walk through that in my mind
correctly when I was reading it?
MR. TRIPI: Yes. And now I'll elaborate on that.
THE COURT: Or should we slow it down and take a
closer look at it?
MR. TRIPI: I will.
THE COURT: All right.
MR. TRIPI: So there's a witness in this indictment.
Frankly, it's the person that actually transmitted the messages.
That person was approached by the FBI before being
charged by a criminal complaint.
Unclear to me as I stand here, whether it was post
approach by the FBI or post charging by criminal complaint, but
that particular person was represented by a particular defense
attorney.
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That particular defense attorney, who currently
represents the witness, has indicated to prosecutors that I'm
working with, that he has represented this individual in every
criminal matter that this individual has had.
All right. So the current lawyer made that
representation to us, and the current lawyer provided the text
messages to us by screenshot from his client.
And those screenshots -- I don't have in front of me,
so I'm going to do my best to paraphrase -- okay. I have them
here. Thank you.
So, I have them in front of me now. Those text
messages were forwarded from the witness to her attorney by
screenshot, and then forwarded them to us.
And the screenshots were from a person who is
apparently an attorney, but also someone who plays in a band in,
like, the local bar scene.
The witness indicated she knows this attorney/person
who is in the band from the bar scene, not from prior
representation.
So that's what's been represented to us between the
witness and her current attorney. And the current attorney is
Michael D'Amico. No problem putting his name on the record.
But the text message -- the solicitation, so-to-speak,
reads: "Hey, (insert name). It's (insert name). How have you
been? Are you free to talk at all today?
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I just want to go over something and make sure you're
okay, and let you know, if you need me, I'm here."
The witness responds: "I'm actually headed to
Mike D'Amico at 1:30. After I meet with him, I can give you a
call, but I just had a surgical procedure, so I basically can't
walk."
This individual then texts: "Oh my God, I'm sorry to
hear that, honey. Where are you living now? Are you okay
otherwise?
I know Mike well. Great guy and great attorney. I'm
guessing he's meeting you for the same concern I had, as I got a
call from Peter Gerace's attorney, Steve Cohen, concerning that
the Feds might be trying to intimidate you, or even just bring
you in for questioning.
He saw that I was your attorney in the past and
reached out to me for me to make sure you were okay, and knew
I'm here if you need representation. And I want you to know I'm
here, even if you just need a friend as well."
Then as explained to us, the witness meant to text
Mike D'Amico, who has the same first name as this attorney, and
wrote: "By the way, never used him for an attorney. That's
bullshit."
The person who reached out got that text, and said,
"Never used who as an attorney?"
And the witness explained to us -- the witness thought
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USA v Peter Gerace, Jr. - Proceedings - 3/27/23

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on her feet, and wrote the following: "Thought you meant Steve
Cohen, LOL. Sorry. I'm confused. Have a great day." Trying
to end the communications.
This attorney follows up: "No sorry, hon. I meant
Steve saw that you had me as your attorney and that's why you
reached out to me.
You have a great day too and let me know how things
go. I'm here if you need, babe."
The witness responds: "Thanks. I'm just focusing on
my recovery."
The attorney writes: "Absolutely. That's the most
important thing right now. If you need anything, I'm here."
Those were the communications that were provided by
Mike D'Amico to us.
Mr. D'Amico further stated: To his knowledge, he's
represented this particular witness in every case she's had
since she was a teenager.
THE COURT: Okay. Let's talk about that topic.
Mr. Soehnlein, anything that you wish to say on that
topic?
MR. SOEHNLEIN: Your Honor, it's -- obviously we don't
have the texts and this is the first that I've heard them. And
we certainly would like to have them.
However, the thing that jumps out at me, Your Honor,
is that nowhere did this attorney say that she wanted to help
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the witness lie, or that he wanted to help the witness protect
Peter, or that she wanted to do anything of that nature.
Clearly, what I'm understanding, there was some
previous personal relationship, or else -- presumably, the
witness would not have responded.
It was an amicable relationship, or else the witness
would not have responded. And I didn't hear -- or -- yeah, I
didn't hear any text that would indicate that the attorney was
trying to suborn perjury, or suggest obstruction, or even
suggest that they not meet with Federal authorities in this
case.
Obviously, I don't know the blow-by-blow. And if
Your Honor wants more information about it, I'd love an
opportunity to review it with the defense team and provide you
with additional information.
But at first blush, it doesn't appear to be any form
of witness tampering and more important -- perhaps most
importantly, Your Honor, there is nothing there that suggests it
came from Mr. Gerace himself.
The suggestion is that it came from Gerace's attorney.
It does not say Peter told me to call you; Peter told me we had
to talk; Peter tells you to not talk to Federal authorities,
that's not anywhere in the message, Your Honor.
And so I don't believe that that should weigh against
Mr. Gerace in Your Honor's calculus on this issue.
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THE COURT: All right. I'm not going to consider that
issue, but I'm just simply going to say, as an
issue-spotting-kind-of-person, it does cause me some concern, so
I would advise the defense team to be careful on that front.
All right. So next is Mr. Soehnlein -- other topics,
any proffer, any evidence, that sort of thing.
MR. SOEHNLEIN: I do have a proffer, Your Honor. And
I think Your Honor knows me, I try hard to be succinct.
But the thing that I note from Friday is that most of
what the Government relies upon is consistent with prior
proffers that the Government has made in favor of detention at
other times in this case.
It's not new information, Your Honor. It may be
amplified information, but it's not new. It's stuff that was
known to probation when probation made the recommendation for
Mr. Gerace's release.
It's things that were known to Your Honor or
allegations that were known to Your Honor.
More importantly, Your Honor, the Government's
argument relies on their position that probation can't and does
not do its job.
That's a new one to me, given the number of cases that
they rely on probation's recommendation in favor of detention.
This is the first time that that's happened.
Your Honor, I wanted to show you -- I'd also like the
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ELMO --
Mr. Tripi, if I can use the ELMO --
MR. TRIPI: Certainly.
MR. SOEHNLEIN: In my view, Your Honor, the most
serious allegation had to do with what the Government had to say
about Mr. Tripi -- or sorry, Mr. Gerace's ex-wife.
And it's there. He had a son with the young lady, and
I'll get to how he assaulted her in a moment -- but while she
was afraid of him and on the run in fear for her life, hiding
out, the judge -- excuse me -- this defendant did a pro se
motion for a name change, to have his son's name changed to this
name.
That judge granted it the same day. The mother was
nowhere to be found, but of course, it was applied for and
granted the same day.
Your Honor, that's a hundred percent untrue. The
woman is sitting right there. That's Mr. Gerace's ex-wife.
We've spoken with her. This is not true.
This is not how the name change happened. It took
several months. They were both there. She didn't fear for her
life. That's not true. That's not accurate.
She is sitting right there, supporting Mr. Gerace's
release, because they co-parent his 16-year-old son, Nick, who
lives primarily with Mr. Gerace.
Further down, the Government says in 2010, there was
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information that the defendant was traveling with a young lady
from New York City.
There was a tip she had drugs in a false compartment
coming through the airport. At that time, law enforcement had a
canine do a sniff.
The dog didn't alert, and they decided not to step in
and stop and question, but the information about the defendant
having a supplier in that timeframe, there is other information
that suggests that -- that I've reviewed in this
investigation -- so looking back at that tip, it didn't turn out
to be anything. I will consider asking you to consider that
part of his history.
Your Honor, that was kind of a throwaway ploy at the
time, and I guess I didn't catch it as it was going by.
But this tells us something about the case, Your
Honor. This tells us that Mr. Gerace has been under
investigation for Federal law enforcement for drugs since at
least 2010.
It's 2023. In that timeframe, he's been supervised by
probation. There have been multiple search warrants on his
homes and businesses.
There have been some probation violations --
supervised release things. There's no drugs here, Judge.
There's no drugs. There's no controlled buy. There's no
cocaine in the courtroom.
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There's no massive quantities of anything. There's no
media of a buy-and-bust from 2010 until now.
The Government wants to rely on an unsubstantiated
allegation from 2010 to keep Mr. Gerace locked up. This is
where we're at. There's no there there.
THE COURT REPORTER: I'm sorry, what did you say?
MR. SOEHNLEIN: There is no there there. It's
colloquialism. Sorry. Maybe not a good one.
Your Honor, with regard to the new allegations, these
are things that the Government has had for four years, as I've
said.
These are messages the Government has referenced in
the past and spoken about in front of Your Honor.
The text messages don't -- they do not in any way
indicate that Mr. Gerace intends to do violence. They don't
indicate that Mr. Gerace intends to do anything to this witness.
What they say is that whoever this third party was,
might do some violence. And it references things that I believe
show personal animus between the two women involved that don't
involve Mr. Gerace.
The Government is going to say, well, we trust but
verify, and now we're verified.
Given the scope and timing of this investigation,
Your Honor, I have to believe the Government has spoken with
this witness more than one time. Perhaps more than twice.
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It leads me to believe that the first time they spoke
with her, she probably either denied wrongdoing, denied the
message, or made some other statement to law enforcement that
did not corroborate the tampering charge.
If the Government is going to rely on her now, I think
Your Honor ought to see all of the 302 material, which isn't
here. You didn't see it.
Your Honor, I want to talk about proof. What the
Government has -- they've offered words. They've made some very
serious, very scandalous allegations.
We know that at least some of them were wrong. She is
here; she can tell you that they are wrong. That's on the one
hand -- remember, you were weighing factors. The allegations.
On the other hand, we have probation and a history of
compliance while on supervised release. We have probation
saying, you should let him out, Judge. There is no need to
detain him.
Alternatives exist. Alternatives to incarceration
exist that can secure his return to court and safeguard the
community.
We would submit it's a continuation of the same
conditions, but Your Honor is certainly capable of fashioning
some other appropriate way of monitoring that would keep him
from being incarcerated.
Your Honor, Mr. Gerace is not in great health, as I'm
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sure you understand. He has cardiac issues. He suffers from
depression.
And as is well-documented, incarceration in local
facilities is particularly hard for people who have those health
concerns, particularly in the era of COVID.
What's more though, Your Honor, is he's the sole
provider for his 16-year-old son. He has him 28 days out of the
month. He's had custody of his son since he was four years old.
Now, it's true, he does co-parent very well with his
child's mother, who is here in support of him, but that son
needs his father, particularly in the lead up to trial.
More critically, Your Honor, in my estimation,
detention will be an undue burden on defense counsel in
preparing for this case.
We don't have the discovery material. We don't have
the most critical stuff. It's still forthcoming.
As we get it, we need Mr. Gerace to be able to review
this stuff and inform us what's true, what's false, where to
look, how to investigate defense leads.
That process, Your Honor, is unreasonably and unduly
hampered if Mr. Gerace is incarcerated in any form.
And so, Your Honor, I submit there are terms and
conditions that Your Honor can fashion that will safeguard the
community, ensure his return to court, and be appropriate that
are short of detention, Your Honor.
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THE COURT: Mr. Tripi -- I'm sorry. I thought you
were done.
MR. SOEHNLEIN: I'm sorry.
THE COURT: Go ahead.
MR. SOEHNLEIN: Sometimes I stop and really I'm just
getting tired.
Your Honor, finally, the timing of this motion, after
we have made a motion to provide Mr. Gerace with important
discovery materials, that we believe show false testimony in
front of the Grand Jury is suspect, at best.
Your Honor, some of Mr. Tripi's proffer came from that
witness. It did. Some of the most scandalous, salacious
allegations came from that witness.
MR. TRIPI: From what witness?
THE COURT: Hold on, Mr. Tripi.
MR. SOEHNLEIN: And we know, Your Honor, as set forth
in our motion, under seal -- we know, Your Honor, that that
witness has lied.
We also know that the U.S. Attorney's Office went
through efforts to rehabilitate that client's testimony in the
Grand Jury, as is laid out in our motion.
We need to be able to provide that material to
Mr. Gerace, so he can inform us what's true, what's false, so we
can make a calculation about what to do with that information.
It's suspect, Your Honor, that we make that motion on
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a Tuesday, and the new arrest comes on Friday with the tampering
charges.
Information that the Government has had for four years
-- suddenly there is a new indictment.
So, Your Honor, we'd ask you to continue the terms and
conditions of Mr. Gerace's release, consistent with the
recommendation from the United States Probation.
MR. TRIPI: Just a few points, Judge.
THE COURT: Yeah. Before you go there, though, let me
ask you to go right to this suggestion from Mr. Soehnlein, that
the two women in the basement on the Facebook account somehow
were doing this of their own volition, without any involvement
of Mr. Gerace; so how do you respond to that?
MR. TRIPI: I think the Grand Jury indictment speaks
for itself. We have a probable cause determination by a Federal
Grand Jury that heard the evidence.
And that Grand Jury considered evidence from the
recipient of the messages in the form of Grand Jury transcripts
and the other individuals.
There is a probable cause finding, so all three other
people who had a part in this were considered.
And so I think the Second Circuit case law is
abundantly clear that it's the indictment that triggers the
probable cause determination, and you have an indictment before
you.
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Now, I would note, to go back to probation's
recommendation, the probation office in Florida during -- you
want to talk about COVID -- during the middle of COVID,
recommended that he be detained.
Now, it was about five minutes before the detention
hearing, and after we made representations to Mr. Daniels about
the fact that his client would have been allowed -- had he been
arrested in Buffalo, would have been allowed to surrender
himself.
So, the only reason the Government didn't move for
detention was we were battling distance, initially, during the
heart of COVID, and we thought that an AUSA who had no clue
about any of these facts would be the one left to proffer it.
And we had made representations previously to
Mr. Daniels that we wanted to uphold. We weren't anticipating
in arresting in Florida at that time.
So -- but that -- interestingly, that Florida
probation department recommended detention, just on the face of
the indictment. Nevertheless, we agreed to conditions, but a
whole lot has changed since then.
So the defense proffer is that probation knows all
these things.
Probation didn't know anything that I said yesterday,
because all they did was get the reclamation from Florida and
disagree with it while submitting a memo that says: Oh, by the
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way -- Andre McCray wrote a memo that says he lied to the
Florida Probation Department, because he said he didn't do drugs
and he tested positive for cocaine. So that addresses a little
bit of that.
I heard Mr. Gerace has health issues for the first
time. When he was arrested the other day, he was on his way to
the gym, dressed in gym clothes.
So apparently it doesn't block him from working out.
I submit to you, he's just fine.
The Government laid out the timeline of its
indictment, and one of the acquired witnesses on Friday.
No later than March 14th was approval sought to return
the indictment in this matter; well before any defense motion.
If you would like to call Criminal Chief Kresse, have
at it. But as an officer of the Court, that's the date we
purposed charging him, and that's our internal process that I
just put on the record.
In terms of pointing to Mr. Gerace's ex-wife in the
back, I feel bad for Ms. Arida to be placed in this situation.
To have a documented history of abuse, to have a child
in common with this man, and now be called out to come to court
and sit there and pretend you're okay with this, or what?
What's the alternative for her with that show that was
displayed a moment ago?
The facts are, we recovered the order signed by Judge
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Michalski, Mr. Gerace's good friend.
It was a pro se order signed July 7th, 2008, the same
day as the pro se application.
And in it, it wrote: The order -- the order does not
indicate that Arida was present or on notice of the petition.
The order states: It appearing that notice is not
required to be given to any person, and the Court being
satisfied -- apparently because of the personal relationship
between the judge and Mr. Gerace -- there is no reasonable
objection to the change of name proposed.
He signs the order, as followed. This excerpt is from
the search warrant application of Judge Michalski.
And so, I'd ask you to disregard that little show from
a few moments ago. He's continuing to commit crimes. He will
continue to commit crimes.
He's a danger to the community. He has resources
making him a flight risk. The indictment triggers the statutory
presumption that he's a flight risk and a danger, and the weight
of the evidence clearly shows this Court that he is and he
should be detained.
THE COURT: Thank you, Mr. Tripi.
Mr. Soehnlein, last word.
MR. SOEHNLEIN: Thank you, Your Honor.
Your Honor, this hearing is about a return to court,
safeguarding the community, making sure that Mr. Gerace is not a
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flight risk.
His history of supervision shows that he's none of
those things, Your Honor. There are certainly terms and
conditions that Your Honor could impose, short of detention, to
ensure that those things are done.
While there may be a presumption, it's rebutted by the
time that he's been on supervised release, Your Honor. Even the
time that -- even the time when the Government alleges that he
was under investigation, he didn't go anywhere. He didn't fly
out of town.
He didn't skip town. He's here to answer the charges.
He engaged attorneys. He's made it to every court appearance.
Aside from the EIDL controversy, there's no other
criminality during that time. Not only is probation watching
him, but you know that Federal law enforcement is watching him
during that time as well.
Your Honor, we ask that you continue the terms and
conditions of his release.
THE COURT: Thank you, Mr. Soehnlein.
All right. So I'm going to walk through my thoughts
about my conclusion and my reasons and then, obviously, there
will be a standard order that comes -- a written order to make
sure that I've tracked all the items.
I've heard everything I heard on Friday and today, all
pursuant to the factors in subsection G of 3142, which I've
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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 -- the counter way and stand in the face of that; and things
like the new detail that I've heard from Mr. Tripi 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.
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 the Michalski
incident, also, as well as the Amherst Police Department
detective incident that I heard about on Friday as well.
The cocaine and drug supplying and prostitution items
aren't good facts either.
The loan application issues, at a minimum, present
recent untrustworthy activity from June, 2020 and July, 2021.
Some of that activity after the releases in the 19-CR case.
And in particular, noteworthy is the denial of prior
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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, the
LaFontaine case accounts for and speaks to.
Taking into account all of the 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 E-3.
Nevertheless, I find by clear and convincing evidence
that no condition or combination of conditions will reasonably
assure the safety of any other person in the community,
especially vis-a-vis witnesses against Mr. Gerace.
And I also note that the case law, for example,
LaFontaine, about detention and witness tampering cases also
notes cases about detention and obstruction of justice cases,
even absent violence or threats of violence.
Therefore, I order Mr. Gerace detained pending trial.
He -- at the end of this proceeding, will be committed to the
custody of the Attorney General. The balance of the order
that's forthcoming will follow.
We need to look at and think about a couple things,
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next, given this 23-CR case conclusion.
It triggers a couple of things in my mind, which is
what are we doing about the release order in the 19-CR case.
Is there going to be a violation proceeding, and/or is
the hearing -- there was never a detention hearing in that case,
so we can't reopen it under the statute under -- again,
subsection F, the flush language.
The point is -- we've got incongruous orders out
there. Certainly, the detention order is going to trump, but I
still have to deal with the fact that we've got an order in the
19-case, so we've got to deal with that some some way.
Mr. Tripi, what's your suggestion?
MR. TRIPI: I think the indictment in this case is a
changed circumstance that would allow for the Court to consider
the fact that it's now heard additional information and entered
a detention order.
THE COURT: Right. Well, why don't you submit
something and --
MR. TRIPI: I will.
THE COURT: -- and then give the defense a chance to
respond to that.
I -- even before I came out here, Mr. Soehnlein,
Mr. Cohen, I'm acutely aware that the trial date is 12 weeks
away or so.
I've accounted for that before I came out here and
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now, and listening to Mr. Soehnlein reminded me of it.
So what I'm -- defendants prepare for trial from
county jails here all the time. I'm sure it's not fun, but it
happens, and it's the norm for them.
So what I want to say is, is this: I'll consider
every motion on the merits. I always do.
But if you're going to make a motion for temporary
release to prepare for trial, it can't be on this record,
because I've already considered all these things.
So there's got to be something new and compelling for
me to consider in order to justify something like a temporary
release under subdivision I.
Remember you have Judge Roemer tomorrow, I believe, at
2 o'clock. Is there anything else that we need to talk about in
the 23-CR case?
MR. TRIPI: No, Your Honor.
MR. SOEHNLEIN: Nothing further, Your Honor.
THE COURT: Okay. So let's call the 19-case, and
we're going to do the Curcio piece now. Status conference on
the Curcio motion.
THE CLERK: Court calls United States versus
Peter Gerace, Jr., case number 19-CR-227 for a status
conference.
Counsel, please state your appearances.
MR. TRIPI: Joseph Tripi, David Rudroff, and
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Nicholas Cooper for the United States. Good afternoon.
MR. SOEHNLEIN: Eric Soehnlein, Steve Cohen for
Peter Gerace.
MR. COHEN: Tyler Eckert as well, Your Honor.
THE COURT: I'm sorry, what's that?
MR. COHEN: I beg your pardon, sir. Tyler Eckert,
E-C-K-E-R-T, is here as well. He's sitting behind me.
THE COURT: Okay. So on the Curcio process, there is
the motion to determine whether a conflict exists and what to do
about it.
There's been a response from Mr. Soehnlein, and I have
a call in to Mr. Spitler to see what his availability is like,
since he seems to be of -- by conflict purposes, available to
us, and he served as Curcio counsel once before in this case for
Mr. Gerace.
So I'd like to use him again, if he's available and
willing to do it. He hasn't gotten back to me yet.
I know that I think I heard you say, Mr. Tripi, that
he wasn't around today anyway, which is why he hasn't called me
back.
MR. TRIPI: There was sort of a family emergency
today.
THE COURT: Okay. So when he calls me -- I'm going to
leave the next appearance on this Curcio process unscheduled, so
that we can see what his calendar looks like when he calls me
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back.
And then I'll put out a text order and have you come
back and we'll do part two of Curcio and then part three after
that, so that's probably all I can do at this point on that
front.
Mr. Tripi --
MR. TRIPI: I have nothing else, Judge.
THE COURT: Mr. Soehnlein?
MR. SOEHNLEIN: Nothing further, Judge.
THE COURT: Mr. Cohen?
MR. COHEN: Nothing further, Judge.
THE COURT: All right. So that does it for the Curcio
process status conference in the 19-CR case.
If there is nothing further from any of you, the
defendant will remain detained pending trial in the 23-CR-37
case, which is what brought us here in the first place.
Okay. Thank you.
MR. TRIPI: Thank you.
(Proceedings concluded at 2:28 p.m.)
* * *
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39
In accordance with 28, U.S.C., 753(b), I certify that these
original notes are a true and correct record of proceedings in
the United States District Court for the Western District of
New York before the Honorable John L. Sinatra, Jr.
s/ Bonnie S. Weber March 31, 2023
Signature
Date
BONNIE S. WEBER, RPR
Official Court Reporter

United States District Court
Western District of New York
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EXHIBIT E
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IN THE DISTRICT COURT OF THE UNITED STATES

for the Western District of New York
____________________

MARCH 2023 GRAND JURY
(Impaneled 03/24/2023)

THE UNITED STATES OF AMERICA

-vs-

PETER GERACE, JR.

INDICTMENT

Violations:
Title 18, United States Code, Sections
1343, and 2
(4 Counts, Section 3147 Allegation, and
1 Forfeiture Allegation)

INTRODUCTION

The Grand Jury Charges That:

At all times relevant to this Indictment:
1.
Defendant PETER GERACE, JR. (“GERACE”) was a resident of Clarence,
New York, within the Western District of New York.
2.
Pharaohs GC, Inc. (“PGC”) was a domestic corporation incorporated under
the laws of the State of New York on or about March 25, 2005. PGC had a principal place
of business at 999 Aero Drive, Cheektowaga, New York. GERACE was the 100% owner of
PGC and served as the Chief Executive Officer of PGC.
3.
PGC was a “gentlemen’s club” or “strip club.” PGC offered live sexual
performances to patrons in the form of exotic and/or nude dancing, i.e. “stripping” and/or
“lap dances.” PGC employed dancers as independent contractors or W-2 employees. The
dancers charged PGC’s patrons for private or semi-private lap dances. Dancers charged the
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patrons a fixed rate per song and accepted tips. The dancers would then contribute a portion
of the funds received to PGC.

The Small Business Administration and Economic Injury Disaster Loan Program
4.
The United States Small Business Administration (“SBA”) is an agency within
the Executive branch of the United States government that provides support to entrepreneurs
and small businesses. The mission of the SBA is to maintain and strengthen the nation’s
economy by enabling the establishment and viability of small businesses and by assisting in
the economic recovery of communities following disasters.
5.
The Coronavirus Aid, Relief, and Economic Security (“CARES”) Act was a
federal law enacted in March 2020 that was designed to provide emergency financial
assistance to the millions of Americans who were suffering the economic effects caused by
the COVID-19 pandemic. One source of financial relief was the Economic Injury Disaster
Loan (“EIDL”) Program. The EIDL Program was designed to provide low-interest loans to
qualifying small businesses to help them meet financial obligations and operating expenses
that would have been met had a disaster not occurred.
6.
To obtain a loan under the EIDL Program, a qualifying business was required
to submit an online EIDL application to the SBA with truthful and accurate information. The
EIDL application was required to be signed by an authorized representative of the business.
The applicant was required to certify, among other things, that: (a) “[the] applicant does not
present live performances of a prurient sexual nature or derive directly or indirectly more than
de minimis gross revenue through the sale of products or services, or the presentation of any
depictions or displays, of a prurient sexual nature;” (b) the applicant was not “presently
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subject to an indictment, criminal information, arraignment, or other means by which formal
criminal charges are brought in any jurisdiction”; and (c) the applicant had not ever “been
convicted, plead guilty, plead nolo contender, been placed on pretrial diversion, or been
placed on any form of parole or probation” “for any criminal offense.” The questions on the
application, including these specific questions, were material to the SBA’s determination of
eligibility for an EIDL.
7.
Before an EIDL could be disbursed, the applicant was required to review and
sign a Loan Authorization and Agreement (“LA&A”). By signing the LA&A, the applicant
certified, among other things, that “[a]ll representations in the Borrower’s Loan application
(including all supplementary submissions) are true, correct and complete and are offered to
induce SBA to make this loan.” This certification was material to determining eligibility for
an EIDL.
8.
An applicant under the EIDL Program could also apply to modify an EIDL to,
among other things, increase the amount of the loan. If the modification application was
approved, the applicant was required to review, certify, and execute an Amended LA&A. By
executing the Amended LA&A, the applicant certified, among other things, that: (a) “[t]here
has been no substantial adverse change in Borrower’s financial condition . . . since the date
of the application for this Loan[ ] (Adverse changes include, but are not limited to: judgement
liens, tax liens, mechanic’s liens, bankruptcy, financial reverses, arrest or conviction of felony,
etc.”; and (b) “[a]ll representations in the Borrower’s Loan application (including all
supplementary submissions) are true, correct and complete, and are offered to induce SBA to
make this loan.” This certification was material to determining eligibility for modification of
an existing EIDL.
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COUNTS 1 - 4

(Wire Fraud)

The Grand Jury Further Charges That:

9.
The allegations in paragraphs 1 through 8 of the Introduction of this Indictment
are incorporated herein by reference.
10.
Between in or about March 2020, the exact date being unknown, and on or
about December 2021, in the Western District of New York, and elsewhere, the defendant,
PETER GERACE, JR., did devise, and intend to devise, a scheme and artifice to defraud the
SBA and to obtain money and property from the SBA by means of false and fraudulent
pretenses, representations, and promises, and for the purpose of executing such scheme and
artifice did transmit, and cause to be transmitted, by means of wire communication in
interstate and foreign commerce, any writings, signs, signals, pictures, and sounds.
11.
The purpose of the scheme and artifice was for GERACE to trick and mislead
the SBA into approving a loan and two loan modifications under the EIDL Program by
providing false material information to the SBA and certifying the truth, correctness, and
completeness of that information. Specifically, as to the initial EIDL application, GERACE
falsely certified that PGC did not present live performances of a prurient sexual nature, or
derive directly or indirectly more than de minimis gross revenue through the sale of products
or services, or the presentation of any depictions or displays, of a prurient sexual nature; and
that he had never been convicted for any criminal offense. As to the two loan modifications,
GERACE falsely certified that, since the date of the initial EIDL application, there had been
no substantial adverse change in PGC’s financial condition, and he had not been arrested for
a felony.
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The April 5, 2020 Economic Injury Disaster Loan Application
12.
On or about April 5, 2020, GERACE submitted an online loan application
under the EIDL Program to the SBA on behalf of PGC. The loan application was
electronically submitted by GERACE, and caused to be submitted by GERACE, from the
Western District of New York to servers located outside the State of New York.
13.
In the April 5, 2020 EIDL application, GERACE falsely and fraudulently
represented to the SBA that PGC did not present live performances of a prurient sexual nature
or derive directly or indirectly more than de minimis gross revenue through the sale of
products or services, or the presentation of any depictions or displays, of a prurient sexual
nature.
14.
In the April 5, 2020 EIDL application, GERACE also falsely and fraudulently
represented to the SBA that he had never been convicted of any criminal offense.
15.
On June 12, 2020, GERACE executed the LA&A in support of his fraudulent
April 5, 2020 EIDL application. In that Agreement, GERACE certified that “[a]ll
representations in the Borrower’s Loan application (including all supplementary submissions)
are true, correct and complete, and are offered to induce SBA to make this loan.” In fact, as
GERACE then and there well knew, the representations on PGC’s EIDL application were
“not true, correct, and complete” because: (a) PGC operated as a strip club, and, as such,
presented live performances of a prurient sexual nature, and derived directly or indirectly
more than de minimis gross revenue through the sale of products and services, and the
presentation of depictions and displays of a prurient sexual nature; and (b) because GERACE
was previously convicted of a criminal offense, that is, a conviction in United States District
Court for the Western District of New York, on or about November 23, 2005, for Conspiracy
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to Commit Wire Fraud in violation of 18 U.S.C. § 371. The LA&A application was
electronically submitted by GERACE, and caused to be submitted by GERACE, from the
Western District of New York to servers located outside the State of New York.
16.
Based on GERACE’s false and fraudulent certifications, the SBA approved the
loan application on or about June 12, 2020, and disbursed $150,000 in United States funds to
PGC under the EIDL Program.

The August 7, 2021 Economic Injury Disaster Loan Increase Application
17.
Between on or about April 21, 2021, and on or about May 21, 2021, GERACE
contacted the SBA and requested that the amount PGC borrowed under the EIDL be
increased.
18.
On or about August 7, 2021, GERACE executed an Amended LA&A, seeking
to increase the loan he received under the EIDL Program to $500,000. In the Amended
LA&A, GERACE again falsely certified that “[a]ll representations in the Borrower’s Loan
application (including all supplementary submissions) are true, correct and complete, and are
offered to induce SBA to make this loan.” In fact, as GERACE then and there well knew, the
representations on PGC’s EIDL application were “not true, correct, and complete” because,
as described above: (a) PGC still operated as a strip club and presented live performances of
a prurient sexual nature and derived more than de minimis gross revenue through the sale of
products and services, and the presentation of depictions and displays of a prurient sexual
nature; and (b) GERACE had been convicted of a criminal offense, that is, a federal felony in
2005. The false Amended LA&A application was electronically submitted by GERACE from
the Western District of New York to servers located outside the State of New York.
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19.
In the Amended LA&A, GERACE further certified that “[t]here has been no
substantial adverse change in Borrower’s financial condition . . . since the date of the
application for this loan[ ] (Adverse changes include, but are not limited to: judgement liens,
tax liens, mechanic’s liens, bankruptcy, financial reverses, arrest or conviction of a felony,
etc.).” In fact, as GERACE then and there well knew, GERACE and PGC had experienced
substantial adverse changes in financial circumstances since the date of the application for the
EIDL. Specifically: (a) on or about February 25, 2021, GERACE was indicted and
subsequently arrested on felony offenses charged in United States District Court for the
Western District of New York in Case No. 19-CR-00227; and (b) as part of that indictment,
“the premises, buildings, appurtenances, improvements, fixtures, and real property”
associated with or owned by GERACE and PGC at 999 Aero Drive, Cheektowaga, New
York had been designated subject to criminal forfeiture.
20.
Based on GERACE’s false and fraudulent certifications, the SBA approved the
loan modification, and on or about August 10, 2021, disbursed an additional $350,000 to
PGC under the EIDL Program.

The December 19, 2021 Economic Injury Disaster Loan Increase Application
21.
On or about September 27, 2021, GERACE again contacted the SBA and
requested that the amount PGC borrowed under the EIDL be increased.
22.
On or about December 19, 2021, GERACE executed a Second Amended
LA&A, increasing the loan he received under the EIDL Program to $2,000,000. In the Second
Amended LA&A, GERACE again falsely certified that “[a]ll representations in the
Borrower’s Loan application (including all supplementary submissions) are true, correct and
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complete, and are offered to induce SBA to make this loan.” In fact, as GERACE then and
there well knew, the representations on PGC’s EIDL application were not “true, correct, and
complete” because, as described above: (a) PGC still operated as a strip club and presented
live performances of a prurient sexual nature and derived more than de minimis gross revenue
through the sale of products and services, and the presentation of depictions and displays of
a prurient sexual nature; and (b) GERACE had been convicted of a criminal offense, that is,
a federal felony in 2005. The Second Amended LA&A application was electronically
submitted by GERACE from the Western District of New York to servers located outside the
State of New York.
23.
In the Second Amended LA&A, GERACE further certified that “[t]here has
been no substantial adverse change in Borrower’s financial condition . . . since the date of the
application for this loan[ ] (Adverse changes include, but are not limited to: judgement liens,
tax liens, mechanic’s liens, bankruptcy, financial reverses, arrest or conviction of a felony,
etc.).” In fact, as GERACE then and there well knew, GERACE and PGC had experienced
substantial adverse changes in financial circumstances since the date of the application for the
EIDL. Specifically: (a) on or about February 25, 2021, GERACE was indicted and
subsequently arrested on felony offenses charged in United States District Court for the
Western District of New York in Case No. 19-CR-00227; and (b) as part of that indictment,
the “the premises, buildings, appurtenances, improvements, fixtures, and real property”
associated with or owned by GERACE and PGC at 999 Aero Drive, Cheektowaga, New
York had been designated subject to criminal forfeiture.

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24.
Based on these false and fraudulent certifications, the SBA approved the loan
modification, and on or about December 23, 2021, disbursed an additional $1,500,000 to
PGC under the EIDL Program.
25.
On or about the dates set forth below, in the Western District of New York,
and elsewhere, the defendant, PETER GERACE, JR., for the purpose of executing the
scheme and artifice, did transmit, and cause to be transmitted, by means of wire
communication in interstate and foreign commerce, writings, signs, signals, pictures, and
sounds, that is, the wire communications set forth below:
COUNT
DATE
DESCRIPTION

April 5, 2020
Electronic submission of a false Economic Injury
Disaster Loan application from Buffalo, New York
to a United States Small Business Association
contractor in West Des Moines, Iowa, via internet
portal.

June 12, 2020
Electronic submission of a false Loan Authorization
and Agreement and other closing documents in
support of the fraudulent April 5, 2020 EIDL
application via DocuSign from Buffalo, New York
to DocuSign servers outside of New York State.

August 7, 2021
Electronic submission of a false Amended Loan
Authorization and Agreement and other closing
documents via DocuSign from Buffalo, New York
to DocuSign servers outside of New York State.

December 19, 2021
Electronic submission of a second false Amended
Loan Authorization and Agreement and other
closing documents via DocuSign from Buffalo, New
York to DocuSign servers outside of New York
State.

All in violation of Title 18, United States Code, Sections 1343 and 2.

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ALLEGATION PURSUANT TO 18 U.S.C. § 3147
The Grand Jury Alleges That:
26.
As the defendant, PETER GERACE, JR., had been released pursuant to
Chapter 207 of Title 18, United States Code, at the time of the commission of the felony
offenses alleged in Counts 3 and 4 of this Indictment, should the defendant be convicted of
Count 3 or Count 4 of this Indictment, the defendant is subject to the term of imprisonment
prescribed in Title 18, United States Code, Section 3147(1), in addition to the penalties
otherwise provided by law.

All pursuant to Title 18, United States Code, Section 3147.

FORFEITURE ALLEGATION
The Grand Jury Alleges That:
27.
Upon conviction of any offense alleged in Counts 1 through 4 of this
Indictment, the defendant, PETER GERACE, JR., shall forfeit to the United States, all his
right, title and interest in any property constituting, or derived from, proceeds obtained
directly or indirectly, as the result of such offenses, including but not limited to:
MONEY JUDGMENT:
The sum of approximately two million dollars ($2,000,000) in United
States currency that represents proceeds that defendant obtained from
his involvement in the criminal conduct, which if not readily available
will become a monetary judgment and will serve as a lien against the
defendant’s property, wherever situated, with interest to accrue at the
prevailing rate per annum until fully satisfied in the event this amount
is not located.

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If any of the property described above, as a result of any act or omission of the

defendant:
(a)
cannot be located upon the exercise of due diligence;

(b)
has been transferred or sold to, or deposited with, a third person;

(d)
has been substantially diminished in value; or

(e)
has been commingled with other property which cannot be
divided without difficulty;

the United States of America shall be entitled to forfeiture of substitute property pursuant to
Title 21, United States Code, Section 853(p), as incorporated by Title 18, United States Code,
Section 982(b)(1), and it is the intent of the United States to seek forfeiture of any other
property of said defendant up to the value of the monetary judgment.

All pursuant to Title 18, United States Code, Sections 981(a)(1)(C), 982(a)(2) and
982(b)(1); Title 21, United States Code, Section 853(p); and Title 28, United States Code,
Section 2461(c).

DATED: Buffalo, New York, June 8, 2023.

TRINI E. ROSS

United States Attorney

BY:
S/DAVID J. RUDROFF

DAVID J. RUDROFF

Assistant United States Attorney

United States Attorney’s Office

Western District of New York

138 Delaware Avenue

Buffalo, New York 14202

716/843-5806

David.Rudroff@usdoj.gov
A TRUE BILL:

S/FOREPERSON
FOREPERSON
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Second Motion For Reconsideration Of Detention

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