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Prosecuting Assistant U.S. Attorney Joseph Tripi, Bongiovanni’s defense attorney Robert Singer and U.S. District Judge Lawrence J. Vilardo on Tuesday discussed a series of court filings from earlier this week about what information from the Bongiovanni investigation and trial can be included in a crafted by a probation officer.

That report is a vital tool for Vilardo to determine a sentence for Bongiovanni, and its subject matter is a battleground for attorneys.

Bongiovanni’s defense believes several details in the probation officer’s drafted report, which was sealed, should be removed because they constitute acquitted conduct. The term refers to a defendant’s behavior that led to criminal charges that were eventually acquitted by the jury. Tripi, however, argues the defense is mischaracterizing indisputable facts under the heading of acquitted conduct.

Before , acquitted conduct could be included in presentencing reports, which could lead to lengthier prison sentences. The new law, however, bars Vilardo in his sentencing from considering Bongiovanni’s conduct in the charges for which he was found not guilty.

Prosecution and defense are not close in their recommendations for prison term length: Singer and co-counsel Parker MacKay believe Bongiovanni should serve 21 to 27 months in jail, while prosecutors are pushing for up to 24 years.

Vilardo, at the start of proceedings, requested the probation officer rewrite her presentencing report. The first draft calculated a high offense score, which would recommend a longer sentence for Bongiovanni. The judge on Tuesday agreed with Singer and MacKay that the first draft inaccurately depicted convictions.

For more than an hour, however, Vilardo engaged with attorneys on both sides, with Bongiovanni seated between his representation, to hear arguments about what information was allowable in light of the amended law. Acquitted conduct relates primarily to cases such as Bongiovanni’s, in which a defendant is found guilty on some charges and innocent on others.

“At its core, the government is unable and unwilling to accept that the verdict(s) in this case were not resounding victories and did not vindicate the core of its sweeping bribery and corruption allegations,” Singer and MacKay wrote in a court document. Bongiovanni was acquitted on charges of accepting a bribe from a drug-trafficking organization, as well as four charges connected to Peter Gerace, owner of Pharaoh’s Gentleman’s Club.

Singer argued that prosecutors tried to create a less clear picture of the charges for which Bongiovanni was convicted and those for which he was acquitted.

Tripi, however, in a court filing wrote that defense attorneys attributed too much in the presentence report draft to acquitted conduct in an attempt to “artificially lower” sentencing guidelines. He also challenged how they define acquittal.

“The defendant fails to appreciate the distinction between elements and facts and urges this Court to adopt the defendant’s erroneous characterization of the jury’s verdict, to recast large swaths of facts as ‘acquitted conduct,’ and to ignore real-world facts,” the prosecutor wrote.

The back-and-forth in the courtroom conveyed the complexity of acquitted conduct. What conduct of Bongiovanni’s factored into the jury’s decisions? What about conduct connected to multiple charges on which the jury arrived at different outcomes?

Among the topics discussed were the quantity of drugs that were “reasonably foreseeable” for Bongiovanni to be aware of in the narcotics conspiracy. While the judge agreed with the defense that Bongiovanni likely knew about less than 110 pounds of marijuana, Tripi urged Vilardo to include also alleged quantities of cocaine and fentanyl in the calculations. Singer retorted that the charge was always about “marijuana, marijuana, marijuana.”

A second topic hinged on the involvement of firearms in the case. Did Bongiovanni had actually witness his narcotics co-conspirators possessing weapons, or was mention of weapons possession in the case was a general characterization of drug traffickers? Additionally, the two sides debated with Vilardo the credibility of testimony by Robert Kaiser, a after Bongiovanni’s first trial.

Although the content of the presentence report is important, Vilardo has flexibility. He must consider a sentence within its guidelines, but he is allowed to give more or less prison time than what the report recommends.

For now, Vilardo will weigh the arguments presented by both sides in court and through filings, then alert the probation officer to his decisions ahead of a second draft of the report.

The judge opted not to determine a sentencing date for Bongiovanni.