What a debacle.
The latest in a long line of embarrassing (and stunning) DOJ setbacks in individual FCPA enforcement actions. (See here, here and here).
First the relevant background.
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).
The new trial was set to begin in July.
Similar to pre-trial briefing in the first trial (see here), the defendants filed a pre-trial motion requesting an order compelling the government to turn over evidence in its possession. In effect, the DOJ said that it did not have any evidence to turn over.
The defendants than recently filed a motion to dismiss which stated:
“It is no secret that the government destroyed two recordings of Mr. Boncy with an FBI undercover agent – recordings of a defendant’s statement, which are classic Rule 16 evidence. Indeed, the government has admitted that is the case. It is also no secret that Mr. Boncy has maintained throughout this matter that the two destroyed recordings, which occurred on December 19, 2015, were exculpatory. Mr. Boncy has maintained that in the recorded calls, his questions and lack of understanding of the charged scheme demonstrated that Mr. Boncy lacked the necessary understanding of the charged conspiracy – or that such a conspiracy ever existed between Mr. Boncy and Dr. Baptiste. And as the Court noted at the end of the prior trial in this matter, Mr. Boncy’s exculpatory claim was indeed “colorable.” It is also no secret that the FBI destroyed these calls, although they have maintained that it was a mistake.
But now – just weeks before trial, years after Mr. Boncy requested the evidence from the government, and only after filing a motion to compel – the government has for the first time ever informed Mr. Boncy that significant, material evidence of the alleged call destruction is gone. More specifically, a disk that purportedly contained the recovered contents of the hard drive that once contained the calls is now gone. Destroyed.
Mr. Boncy is once again unable to test the government’s actions in collecting the evidence, in crossing witnesses, testing the contents of the disk, or even listening to the contents of the disk. The government’s explanation, offered two-and-half weeks before trial, is that they destroyed the evidence because they unilaterally determined that “the disk did not contain evidence or content” – even though it contained 172 wave files, had been collected in connection with this case, and the collection was undertaken after Mr. Boncy had made written discovery demands regarding the lost calls. This conduct cannot be condoned, and the case should be dismissed.”
The DOJ responded:
“Three years ago, Defendant Roger Richard Boncy moved to dismiss the Superseding Indictment based on the government’s loss of two recordings. At an evidentiary hearing, a government witness described how the government tried to recover the lost recordings by
extracting audio files from a government office computer that had failed, but found nothing in the files. They were empty or contained white noise with no discernable relationship to the investigation of this case. The Court denied Boncy’s motion, finding that the loss of evidence was not intentional and, as a result, “dismissal [was] not an appropriate remedy.” Mem & Order at 2 (ECF 181). The Court also did not find that the lost recordings were exculpatory. Id. (“[T]he Court is unable to conclude based on the evidence presented whether the Recordings were exculpatory.”). That is the law of the case.Nevertheless, Boncy, joined by his co-defendant, Joseph Baptiste, now moves to dismiss the Superseding Indictment because the government did not preserve the disk of junk audio files. Their motion is meritless. Contentless files, with no known relationship to this case, are not discoverable under Federal Rule of Criminal Procedure 16 and are not exculpatory in any way. There is no basis for dismissal, and the Court should deny the motion”
As highlighted in this post, last Friday the DOJ filed a short brief which stated in full:
“The government respectfully submits this filing to supplement its previously filed opposition to the defendants’ motion to dismiss.
On June 23, 2022, the Federal Bureau of Investigation (“FBI”) provided to the prosecution team text messages from an FBI computer server, some of which relate to the December 19, 2015 calls between defendant Richard Boncy and an undercover agent that are the subject of the pending defense motion. On June 24, 2022, the prosecution team discovered a text message that describes the content of one of the December 19, 2015 recordings, including describing a statement by defendant Boncy that certain money would not be used to pay bribes. The government has now produced that and other text messages relating to the December 19, 2015 calls between defendant Boncy and the undercover agent.
The government respectfully requests that the Court refrain from ruling on the pending motion to dismiss to give the government and the defense an opportunity to review the text messages and evaluate their positions. The government will supplement this filing as appropriate in advance of the final status hearing on June 28, 2022.”
Last night, the DOJ moved to dismiss the enforcement action against Baptiste and Boncy. The DOJ’s filing states in full:
“The United States of America, by and through its attorneys, Rachael S. Rollins, United States Attorney for the District of Massachusetts, and Lorinda I. Laryea, Acting Chief of the Fraud Section of the Criminal Division of the United States Department of Justice, respectfully move for an order dismissing, with prejudice, the Superseding Indictment as to defendants Joseph Baptiste and Roger Richard Boncy, under Rule 48(a) of the Federal Rules of Criminal Procedure.
As grounds for this request, the government notes that, as it previously notified the Court and the parties, on the evening of June 23, 2022, the Federal Bureau of Investigation (“FBI”) provided to the prosecution team contemporaneous writings about the content of December 19, 2015 calls between defendant Boncy and an undercover agent that had not been previously disclosed to the prosecution team. The government provided this information to the defense on June 24, 2022. In light of the Court’s Rule 33 decision vacating the prior convictions, which was affirmed on appeal, the loss of the December 19 recordings, and the belated disclosure of communications concerning the content of the December 19 recordings, the government seeks to exercise its discretion and dismiss the Superseding Indictment. As a result, the government is not seeking a retrial. Finally, the government submits that dismissal with prejudice serves the interest of justice.
The government has conferred with the defendants, both of whom consent to dismissal of this case with prejudice.”
In a press release, Greenberg Traurig stated:
In a rare and complete victory, a Greenberg Traurig, P.A. team of Litigation and White Collar Defense & Special Investigations attorneys led by Jed E. Dwyer and Stephanie Peral achieved dismissal of the sole remaining charge against Roger “Richard” Boncy.
Boncy is a Haitian national and U.S. citizen the federal government alleged had conspired to funnel bribes from the non-profit National Organization for the Advancement of Haitians to high-level Haitian government officials. Since his indictment, Boncy has maintained that he was innocent and that two calls the FBI destroyed would prove his innocence. Boncy maintained that in those destroyed calls he did not agree with any plan that 5% of the cost of a construction deal in Haiti was intended for bribes. This 5% for bribes, was, as the First Circuit explained after a review of the record, “a key part of the government’s conspiracy theory.” United States v. Baptiste, 8 F.4th 30, 38 (1st Cir. 2021).
Boncy has always maintained that he never agreed with this “key” part of the government’s case. Boncy took this position since his indictment, throughout his previous trial, and up to his upcoming trial on July 5, 2022. All the while, the government remained steadfast in opposing Boncy’s innocence.
But on Friday, June 24, 2022, after Boncy took the unusual step of making a preservation demand on the government, the government “discovered” and disclosed to Boncy that it had certain exculpatory text messages between FBI agents.
These texts – sent on the same day of the destroyed calls – specifically referenced the contents of the destroyed calls. In those texts, consistent with Boncy’s long-held defense, the FBI agent explicitly stated that “Richard said 5% social program money is absolutely not for bribes.” This is exactly what Boncy has claimed all along. And, more egregiously, the existence and content of these texts are directly at odds with the FBI special agents’ testimony throughout this case.
“It is clear now that Richard is innocent; no ifs, ands, or buts about it. The government agrees and today dismissed the sole remaining count against our client,” Dwyer said. “Richard has always maintained he did nothing wrong and the evidence the FBI withheld proves that.”
“We would like to thank the court, specifically Judge Burroughs who prioritized justice throughout. Judge Burroughs truly honored, respected, and protected Richard’s rights from day one. Her respectful, quiet command that the law be followed, and that justice be done, was a breath of fresh air. Our client and we are forever grateful.”
“Our client, Richard, had the courage to stand up to the government, which is a rarity these days. He was adamant in his innocence and his commitment to proving his innocence. Too often the government rides roughshod over defendants. Not Richard. He is a man of conviction, courage, and heart. We are proud to stand with him today.”
As Dwyer noted, “Today is a great day – a day when justice prevails. We are grateful for the crucible of the courtroom.”
The Greenberg Traurig team in the matter also includes Shareholders Mark A. Berthiaume and Jay A. Yagoda.”
In a press release, Fick & Marx stated:
‘Nearly 5 years ago, the Department of Justice brought charges against our client, Dr. Joseph Baptiste, a retired U.S. Army Colonel, practicing dentist, and dedicated Haitian-American humanitarian who lives with his family in Maryland. Dr. Baptiste hired Fick & Marx LLP after he was found guilty at a trial in 2019 on charges including conspiracy to violate the Foreign Corrupt Practices Act and conspiracy to commit money laundering. Fick & Marx promptly secured a new trial for Dr. Baptiste due to the constitutional ineffectiveness of his trial counsel and successfully defended that result when the prosecution appealed.
With a second trial set to start next week, the Department of Justice has now moved to dismiss all charges against Dr. Baptiste and his co-defendant, Richard Boncy.
The prosecution accused Dr. Baptiste of conspiring to pay bribes to Haitian officials, all the way up to the former Prime Minister, in connection with a major infrastructure project to develop a new port in Mole St. Nicolas. That project was intended to promote sustainable development in Haiti, stimulate the local economy, provide needed jobs, enhance regional transportation, and facilitate widespread reforestation. It also set aside funds for social programs, including education, housing, and healthcare.
“Dr. Baptiste never paid a penny in bribes, and he never agreed with Mr. Boncy or anyone else to do so,” said one of his attorneys, Daniel Marx. “Dr. Baptiste’s work to build a port in an especially impoverished part of Haiti was consistent with his lifelong commitment to improve the lives of Haitian people, in Haiti and elsewhere,” Marx explained. For many years, Dr. Baptiste helped run a dental clinic in Port-au-Prince where he delivered free care to thousands of patients. He has also been active in NOAH, the National Organization for the Advancement of Haitians, a pro-democracy charitable endeavor, and was instrumental in organizing international relief efforts in the wake of the 2010 earthquake from which Haiti is still recovering.
“Dr. Baptiste and Mr. Boncy were unfortunate victims of a misguided ‘sting’ operation, in which FBI agents posed as foreign investors and played on prejudiced tropes about pervasive Haitian corruption,” said Dr. Baptiste’s co-counsel, William Fick. “Those agents knew nothing about Haiti, a country they had never even visited,” Fick explained. “The agents had never spoken with the officials who were supposedly offered bribes or considered how their undercover operation might derail a significant development project that could better the lives of countless Haitian people,” Fick said.
“We are pleased that this long nightmare has finally come to just conclusion for Dr. Baptiste and his family,” said Marx. “The new DOJ administration, in Boston and DC, has done the right thing in walking away from a case that never should have been brought in the first place,” Marx added. “While we would have loved to hear a jury return a verdict that Dr. Baptiste was ‘not guilty,’ this decision also vindicates him,” said Fick. “And we are glad Dr. Baptiste, Mr. Boncy, and their families will not have to endure the anxiety and expense of a jury trial to clear their names.”
The DOJ is often mum when its FCPA cases fall apart (see here), but to its credit last night the DOJ released this statement from Rachel Rollins (U.S. Attorney – D. Mass)
“Today’s dismissal of the criminal charges against Joseph Baptiste and Roger Boncy is the result of recently discovered contemporaneous communications about calls recorded on December 19, 2015 between defendant Boncy and an undercover FBI agent. These communications were never disclosed to the prosecutors on the case prior to the evening of June 23, 2022. Moreover, the FBI does not have the original recordings it made of the December 19, 2015 calls.
These defendants were first tried and convicted in 2019. The trial judge vacated their convictions pursuant to Rule 33 for ineffective assistance of counsel. The First Circuit affirmed the granting of a new trial. In preparation for that retrial, and in response to requests from defense counsel, the FBI gave the recently discovered materials to the prosecutors late last week and we promptly produced them to defense counsel the next day.
As the government, our charging decisions deeply impact people’s lives. We have an obligation to provide all discoverable evidence in our possession to the defense. That is a core principle of the criminal legal system. After a careful review of this entire matter, we dismiss these charges in the interest of justice.”
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