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In Post-Trial Motions, Baptiste Seeks Judgment Of Acquittal Or New Trial Based On Ineffective Assistance Of Counsel

As highlighted in this previous post [1], in 2017 (in connection with an undercover string) the DOJ unsealed criminal charges against Joseph Baptiste (a retired U.S. Army Colonel, practicing dentist, and founder / president of a Maryland-based Haitian focused non-profit) for alleged Haitian bribery.

In the original charging document, it was noted as follows:

“On or about December 9, 2015 Baptiste was approached by federal agents. Thereafter, Baptiste, who was represented by a criminal defense attorney, entered into a plea agreement with the government pursuant to which he agreed to waive indictment and plead guilty to an information charging him with conspiracy to violate the FCPA anti-bribery provisions and Travel Act. Baptiste signed the sworn declaration in connection with the plea agreement. More recently, Baptiste has indicated, through counsel, that he does not intend to honor his plea agreement or to plead guilty.”

As highlighted in this prior post [2], in June 2019, after a two-week jury trial, Baptiste was found guilty of conspiring to violate the FCPA and Travel Act, violating the Travel Act, and conspiring to commit international money laundering.

Recently, in post-trial motions, Baptiste is seeking a judgment of acquittal or a new trial based on ineffective assistance of counsel.

The motion seeking a judgment of acquittal states in summary fashion:

“Without waiving his general challenge to the sufficiency of the evidence, Dr. Baptiste submits this memorandum of law focusing on specific issues discussed below as illustrative examples of deficiencies in the prosecution’s proof.

First, the prosecution failed to prove a conspiracy to bribe public officials in exchange for “official acts,” which is required to save FCPA charges from the constitutional vagueness concerns that the Supreme Court identified in McDonnell v. United States, 136 S. Ct. 2355 (2016). Because the prosecution did not expressly identify any “official acts” in the indictment or its trial presentation, and because it failed to prove any contemplated “official acts” that would satisfy McDonnell, there could be no conspiracy to violate the FCPA.

Second, even assuming the prosecution is not required to prove an “official act,” it still failed to establish that the purported bribery scheme violated the FCPA, because it failed to prove a connection between any specific planned payment and any specific contemplated act or decision of a particular foreign official.

Third, the FCPA requires the prosecution to prove that contemplated payments be made “corruptly,” which necessarily entails some breach of an official’s duty to the government or the public. The prosecution made no attempt to carry that burden, giving the jury no evidence from which it could determine what duties, if any, various Haitian officials owed to the Haitian government or the public.

Finally, the failure of the prosecution’s FCPA bribery theory requires acquittal on all counts, because they all depend on the viability of the alleged bribery scheme.”

The brief acknowledges the Second Circuit’s recent decision in Seng hold that McDonnell does not apply to the FCPA, however the brief argues that the court’s “reasoning conflicts with McDonnell.”

[3]

The motion seeking a new trial based on ineffective assistance of counsel states in summary fashion:

“This criminal case arose from a misguided FBI sting operation to expose suspected public corruption in Haiti. It proceeded based on ill-informed, stereotypical assumptions that, in Haiti, everyone is corrupt, everything is “pay to play,” and every word – even “Christmas” – is code for pay-offs and kickbacks. The FBI pursued the investigation by means of an undercover sting operation inexplicably targeting Dr. Joseph Baptiste, an American citizen of Haitian descent, a retired colonel in the U.S. Army, and practicing dentist in Silver Spring, Maryland, who has dedicated his life to improving the welfare of the Haitian people, in Haiti and elsewhere.

The trial produced no evidence that Dr. Baptiste ever paid a penny in bribes to any public officials in Haiti. And even in its closing argument, the prosecution could not cogently explain exactly what Dr. Baptiste allegedly conspired to offer, to whom, and in exchange for what specific actions by public officials in Haiti.

The heart of the prosecution’s case was the testimony of two FBI undercover agents about their interactions with Dr. Baptiste, primarily at two meetings in Boston. First, on November 13, 2014, Dr. Baptiste met with FBI Special Agent Ornello Arlati (UC-1) and a confidential human source. Then, about one year later, on November 12, 2015, Dr. Baptiste met with Arlati; FBI Special Agent “Peter Anderson” (UC-2); Frederic Sales, a Haitian lawyer and alleged, unindicted co-conspirator (CC-1); and Richard Boncy, another Haitian lawyer and the indicted co-defendant in this case. Throughout the trial, the agents presented audio and video clips from the consensual recordings of these meetings, their other calls with Dr. Baptiste, and intercepted communications between Dr. Baptiste, Boncy, and others. After playing these clips for the jury, the agents opined that the often vague, confused discussions represented a clear, unlawful agreement (or agreements) to pay bribes and lauder money in Haiti.

But Arlati and Anderson had never been to Haiti. They did not speak Haitian Creole (the language in which Dr. Baptiste and Boncy often spoke on the phone) and had no knowledge of Haitian business, politics, or law. The FBI never attempted to interview any of the public officials in Haiti to whom Dr. Baptiste supposedly offered bribes, much less confirm that the alleged offers were made. It did not subpoena any financial records or conduct any other investigation in Haiti to “follow the money” that was allegedly laundered through Haitian banks and used to pay bribes. The agents did not seek any information from the Haitian government, the putative victim of the alleged bribery scheme. They conducted no due diligence concerning the National Organization for the Advancement of Haitians (“NOAH”), a charitable organization that, over many years, advocated in the United States on behalf of Haitians and delivered humanitarian assistance in Haiti, such as emergency medical and engineering relief in the wake of the devasting earthquake in 2010. Instead, the agents incorrectly and cynically assumed that NOAH was nothing more than a front for Dr. Baptiste to implement alleged “pay-to-play” schemes.

So why did the jury find, after less than one day of deliberation, that Dr. Baptiste was guilty of conspiring to violate the Foreign Corrupt Practices Act (“FCPA”) and the Travel Act; violating the Travel Act, and conspiring to commit international money laundering? The answer is that Dr. Baptiste received ineffective assistance from his trial counsel.1 At almost every critical stage of these criminal proceedings, and in violation of his Sixth Amendment right to effective representation, it was as if Dr. Baptiste had no lawyer at all.

Trial counsel’s performance was plagued by myriad deficiencies, including failing to conduct an adequate pre-trial investigation, review the discovery, and interview witnesses; failing to consult with potential experts on critical issues; conducting self-defeating cross-examinations or foregoing cross-examinations altogether; failing to challenge the prosecution’s case in any meaningful way; failing to call any defense witnesses, offer any defense evidence, or present any coherent defense theory of the case; failing to challenge the improper lay opinion testimony of the undercover FBI agents who interpreted nearly everything – including “Christmas cards” and “Christmas bonuses” – as code for bribery; failing to move for a severance, even after Boncy’s counsel cast Dr. Baptiste as fraudster who stole money from the FBI and lied to everyone, including Boncy; and failing to request jury instructions on important legal issues based on the trial evidence. At the end of the case, trial counsel could not even formulate his own closing argument, instead delivering nearly verbatim the suggestions of a family friend of Dr. Baptiste.

The cumulative effect of these extensive and inter-related deficiencies was a total breakdown of the adversarial process. As a result, Dr. Baptiste suffered pervasive prejudice. Put simply, given trial counsel’s performance, it is impossible to have confidence in the justice of the jury’s verdict. At a minimum, the fact that Boncy was found not guilty of violating the Travel Act (Count 2) or conspiring to commit money laundering (Count 3) is a strong indication that competent counsel could have made a material difference for Dr. Baptiste in this case.”

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