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Interesting Turn Of Events In Boncy Enforcement Action

Surprise

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 2018 the DOJ added criminal charges against Roger Boncy in connection with the same core conduct. (See here).

Unlike most individual FCPA defendants, Baptiste and Boncy put the DOJ to its burden of proof and in June 2019, after a two-week trial, a federal jury in Boston found Baptiste guilty of one count of violating the Travel Act and one count of conspiracy to commit money laundering and Boncy guilty of one count of conspiracy to violate the FCPA and the Travel Act. (See here).

Thereafter, in post-trial motions the defendants sought an acquittal or a new trial based on ineffective assistance of counsel. (See here). In March 2020, U.S. District Court Judge Allison Burroughs (D. Mass.) granted Baptiste and Boncy a new trial based on ineffective assistance of counsel. (See here).

In August 2021, the First Circuit affirmed a new trial for the defendants. (See here).

That was a rather long introduction to set the stage for the re-trial of Baptiste and Boncy which is scheduled to begin in July.

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Ng Trial Paused As DOJ Acknowledges Its Own “Inexcusable” Error

Inexcusable

As discussed in this prior post, judicial findings of prosecutorial misconduct or other mishaps have been an all too frequent feature in contested individual Foreign Corrupt Practices Act enforcement actions.

This recent post highlighted the start of the FCPA (and related) trial of Roger Ng (a former managing director at Goldman Sachs) for allegedly paying bribes to various Malaysian and Abu Dhabi officials in connection with 1Malaysia Development Berhad (1MDB), Malaysia’s state-owned and state-controlled investment development company.

As highlighted here, the trial has been paused due to – in the words of the DOJ – an “inexcusable” error by the government. Specifically, the DOJ has acknowledged that it has failed to produce to the defense 15,500 documents of co-defendant Tim  Leissner (a former Southeast Asia Chairman at Goldman Sach and Participating Manager Director who pleaded guilty and is cooperating with the government). As highlighted here, the DOJ further described the error as a “total institutional failure.”

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Boncy Seeks Dismissal Of Indictment – Alleges That Government Destroyed Exculpatory Evidence

wow

As highlighted towards the end of this post, judicial findings of prosecutorial misconduct and other mishaps have been an all too frequent feature in contested individual FCPA enforcement actions.

In this recent filing, Richard Boncy (an individual added to the Haiti port project enforcement action in October 2018) moves to dismiss the indictment “on the basis that the Government has destroyed and otherwise failed to preserve evidence that would show he is innocent of all charges in indictment based on an alleged bribery scheme.”

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Prosecutorial Misconduct / Mishaps In FCPA Cases

prosecutorial misconduct

Prosecutorial misconduct has received much attention lately.

Recognizing that the term itself is not crystal clear, this post highlights several instances of prosecutorial misconduct, or at the very least prosecutorial mishaps, in FCPA contested proceedings.

While the examples highlighted below may not seem numerous, keep in mind that DOJ corporate FCPA enforcement actions rarely result in related criminal charges against individuals. In other words, it is not often that the described dynamic even has a chance of playing out.

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