BUFFALO, N.Y. (WIVB) — Italian Organized Crime is mentioned at least 42 times in the original and superseding indictments of a retired Buffalo DEA agent accused of shielding drug dealers from law enforcement suspicion and a Cheektowaga strip-club owner accused of bribing the federal agent.

The use of the ethnic term “Italian Organized Crime” is used by the government not only in the indictments, but in other filings in the cases, and it’s not sitting well with some attorneys, including those defending the accused.

News 4 Investigates spoke to six attorneys, including two former prosecutors, and reviewed hundreds of pages of court documents in the high-profile criminal cases against former DEA agent Joseph Bongiovanni, Pharaoh’s strip club owner Peter Gerace Jr., and others.

They all were asked about the use of the term and whether the government is required to prove its existence. Most agreed that while there is definitely organized crime in the region, labeling it as “Italian” is a whole different ball game that could pose challenges later in the cases.

The U.S. Attorney’s Office issued a media release in November 2019 in which it accused Bongiovanni of aiding drug traffickers, “including individuals whom the defendant believes to be members of, connected to, or associated with Italian Organized Crime (IOC).”

Federal prosecutors allege in court documents that Italian Organized Crime is active in the Buffalo region, by selling drugs, sex trafficking, running scams, and infiltrating the federal agency tasked with enforcing drug laws.

In contrast, defense attorneys directly involved in or with knowledge of the cases have sharply criticized the government’s use of “Italian Organized Crime” in the indictments and responding motions, without filing a single charge under the federal statute known as the Racketeer Influenced and Corrupt Organizations Act or RICO, which is specifically designed to bring down organized crime networks.

In addition, some attorneys have criticized prosecutors for failing to spell out the framework of this alleged crime syndicate.

“In sum, the government’s sensational case appears to be a reverse-engineered narrative, starting with conclusions (Mr. Bongiovanni is Italian and therefore a mafioso; these cases were not investigated, therefore there was a Mafia mole inside the DEA; Mr. Bongiovanni must have done all of this for money, like any other crooked man) and working backwards, despite an absence of clear evidence,” wrote James P. Harrington, Bongiovanni’s attorney, in a motion to dismiss.

“After taking down a handful of local narcotics traffickers, the government suddenly found witnesses it needed … who were desperate enough to concoct stories to help fit the government’s narrative theory and take down Mr. Bongiovanni in the process.”

The U.S. Attorney’s Office has responded in court papers that it does not have to provide the foundation for the Italian Organized Crime allegations or provide any proof that it exists.

“… the government will not be required to prove at trial the actual existence of the mafia or the ‘existence, structure, and alleged activities of IOC in Buffalo,’” wrote Assistant United States Attorney Joseph M. Tripi, in response to the one of the defendant’s motions.

“It will not alter the quantum of proof in the defendant’s favor if the government were to prove, or the defendant to disprove, the ‘existence, structure, and alleged activities of IOC in Buffalo.’”

The U.S. Attorney’s Office refused to answer any questions or agree to any interviews with News 4 Investigates.

Dominic Gentile, a Las Vegas defense attorney with decades of experience in handling RICO cases, believed there is only one reason that the federal government referenced the IOC: “And that is to taint the jury.”

“Trying to make the jurors feel that these are really the Sopranos that are on trial here,” Gentile said.

“It makes it easier because of the image it creates in the jury.”

‘The organization does not appear to exist’

Bongiovanni, the retired DEA agent, was originally indicted in November 2019 for allegedly accepting $250,000 in bribes to protect drug dealers and conspiracy to distribute drugs, among other charges.

Some of those drug dealers, prosecutors allege, have associations with Italian Organized Crime.

Bongiovanni has pleaded not guilty and denied the allegations.

He is one of six men wrapped up in what prosecutors are calling Italian Organized Crime in the Buffalo area.

Gerace Jr., the strip club owner who is the other chief co-conspirator indicted by prosecutors, is a childhood friend of Bongiovanni. Police in Florida arrested Gerace in February and he has since been indicted on charges of bribing Bongiovanni, dealing drugs and human sex trafficking.

The superseding indictment against both men alleges that Gerace paid bribes to Bongiovanni over a 10-year period ending in 2019. In return, prosecutors allege Bongiovanni shielded Gerace, his strip club, and other drug traffickers from being sniffed out by law enforcement.

Gerace has also pleaded not guilty and has denied all charges.

Gentile, the Las Vegas attorney and Italian-American, who studied the indictments and other court filings in both cases, took offense to the government’s regular use of the term “Italian Organized Crime.”

“It’s really wrong for the government to put in this indictment that language,” he said.

Like the arguments made by Bongiovanni’s attorney, Gentile criticizes the government for what he believes are attempts to make a connection to popular television shows about the mafia, such as the Sopranos, when using the ethnic characterization “Italian Organized Crime.”

“I have never seen a case, even a RICO case, where they are characterizing an organized crime enterprise as being Italian,” Gentile said.

Gentile said there is a possibility the government tried to file a RICO case, but got shot down by the main justice.

The U.S. Attorney’s Office declined to answer whether it did or did not try to file RICO charges at any point.

Harrington, the attorney for Bongiovanni, wrote in court papers that the fact the government has not presented any RICO charges or identified the mob leaders and lieutenants, suggests that there is not any real “Italian Organized Crime” network in the Buffalo area.

“The organization does not appear to exist,” Harrington wrote.

“Yet the lore of the Italian Mafia is so pervasive in our society that the government can benefit just from alleging a connection without having to prove it.”

Indeed, the government contends it does not have to prove the existence of any Italian Organized Crime in the region.

Rather, the government contends that what is relevant is “what defendant Bongiovanni thought, believed, knew, and/or what motivated him, and not what the ‘existence, structure and alleged activities of IOC in Buffalo,’ might or might not be.”

Former prosecutors chime in

Anthony Bruce, an assistant U.S. attorney for the Western District of New York for 38 years who has prosecuted organized crime cases, said the government is “legally” correct in stating that it does not have to prove the existence of Italian Organized Crime or detail any of its framework.

“But from a practical standpoint if they don’t have to prove the existence of it, well assuming the don’t have to prove the existence of it, why did they throw it into the indictment?” Bruce said.

“Is it relevant to the issues that they are going to trial with or is it not relevant to the issues they are going to go to trial with? That’s the basic question here.”

With that said, Bruce pointed out that prosecutors must have presented some evidence to the grand jury on the alleged links to Italian Organized Crime to include any of the information in the indicting papers.

“They can’t bake the cake in the grand jury and put the icing on after it comes out of the grand jury,” Bruce said.

“All of the allegations in the indictment have to have at least some evidence before the grand jury to support them, but it doesn’t have to be chapter, verse, who shot John?”

Terrance Flynn, a former U.S. Attorney for the Western District, said the incident is only a charging document; it is not a “provable” document.

“So, they can make assertions in it,” he said.

“Obviously, the grand jury returns the indictment. The risk in doing that is that you could be raising terminology or words that the defendants and their counsel may object to in the courtroom, and it could become an issue in the jury selection process or in the court room itself.”

In addition, Flynn said the lack of any RICO case is “an appropriate issue to raise.”

“Whether it is valid and whether it is going to be deemed objectionable or deemed admissible, the judge will decide,” Flynn said.

“I think you’ve got a flavor already of what the prosecution believes it does or does not need to prove, yet the defense is arguing that they disagree and is also potentially arguing that there’s prejudice in the use of those words in the courtroom.”

Gentile, who also is the founder and member of the board of directors of the Italian-American magazine La Voce, said he has no doubt the reason the government inserted Italian Organized Crime in the court documents was to make the cases against at least some of the defendants easier to prove.

“My visceral response to it is that if they had a strong case, they wouldn’t need to do that,” he said.