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 ).
As discussed here , the DOJ appealed to the First Circuit and yesterday the court affirmed a new trial for the defendants.
In summary fashion, the decision authored by Judge O. Rogeriee Thompson states:
“Meet Roger Boncy and Joseph Baptiste. Boncy once served as chairman and CEO of a U.S.-based investment company called Haiti Invest, LLC. And Baptiste once sat on that company’s board of directors. We use the past tense, because everything changed when the feds accused them of conspiring to bribe Haitian officials into approving an $84 million port project in that country — one involving cement factories, a shipping-vessel repair station, an international transshipment station, and a power plant (among other things). Prosecutors tried them jointly. And each had their own lawyer. We will save lots of details about the trial and its aftermath for later. But for now it is enough to note the following.
The government claimed (based in large part on undercover recordings played at trial) that Baptiste and Boncy solicited money from undercover agents (posing as investors in Haitian infrastructure ventures), which they promised to funnel to Haitian bureaucrats through a Baptiste-controlled nonprofit that supposedly helped Haiti’s poor — 5% of project costs would be allocated to bribe Haitian authorities. And as a further way to grease the project’s skids, the duo — again according to the government’s theory — promised to pay off Haitian officials with campaign contributions, offers of future jobs, and money to fund their favorite social programs. At the trial’s end, the jury convicted them of conspiring to violate the Foreign Corrupt Practices Act and the Travel Act (count 1), and convicted Baptiste (but not Boncy) of violating the Travel Act (count 2) and conspiring to violate the Money Laundering Act (count 3).
After firing his original attorney and hiring a new lawyer, Baptiste moved under Criminal Rule 33 for a new trial on the counts of conviction based on (according to the motion) ineffective assistance of counsel under the Sixth Amendment. Likewise invoking Criminal Rule 33, Boncy asked for a separate new trial on the count of conviction because (the motion argued) Baptiste’s lawyer’s “ineffective[ness]” influenced how the jury “view[ed] . . . both defendants” and so impaired his (Boncy’s) Fifth Amendment “due process right” to a “fair” proceeding. The government opposed both motions.
Following an evidentiary hearing, the district judge found that Baptiste had shown deficient performance of counsel and that the cumulative effect of counsel’s deficiencies caused him (Baptiste) prejudice. Not only that, but the judge also found Baptiste’s attorney’s shortcomings prejudiced Boncy by (among other things) requiring “Boncy’s counsel . . . to play an outsized role at trial rather than pursue his preferred defense strategy.” And noting that a joint trial of alleged coconspirators is presumptively appropriate and that “severance [was] not warranted,” the judge ordered a joint retrial in the interest of “justice” because neither defendant got “a fair” first trial — the significance of the “justice” buzzword (pulled from Rule 33) will be apparent later.
From that decision, the government now appeals. After setting out the guiding legal principles, we turn directly to the issues that confront us — adding additional details necessary to put matters into workable perspective. When all is said and done, we affirm.”
As to certain of the government’s arguments on appeal, the court stated:
“The government starts off by insisting that “[t]he evidence of Baptiste’s and Boncy’s guilt was overwhelming,” claiming that “[i]n call after recorded call” they “agreed to bribe Haitian officials” to grease the skids for the project. And according to the government, the evidence underpinning “Baptiste’s convictions for violating the Travel Act and conspiring to commit money laundering was no less compelling.”
[T]he government’s thesis suggests that sufficiently strong evidence can sink any ineffective-assistance claim.
And while the government is convinced of Baptiste’s and Boncy’s guilt based on its own — basically unchallenged — evidence, “we have never intimated that the right to counsel is conditioned upon actual innocence,” because actually “[t]he constitutional rights of criminal defendants are granted to the innocent and the guilty alike.”
The government next faults the judge for not “consider[ing]” Baptiste’s counsel’s failings “in light of Boncy’s complementary defense.” Boncy’s lawyer, the government writes, “took the lead on cross-examining witnesses and, through his skilled questioning, advanced an argument” that no “conspiratorial agreement” ever existed — which matters because Baptiste could not be convicted of any conspiracy without a coconspirator. The government, however, cannot win under this theory either.
Hurting the government here is that other supposed coconspirators existed, albeit unindicted ones (as even the government concedes). Putting that point aside does the government no good, however. Even granting that Boncy’s lawyer tried on cross-examination to play up the no-conspiratorial-agreement angle, the government is still stuck with the judge’s finding — based mostly on Baptiste’s counsel’s evidentiary-hearing testimony — that the two defense teams “did not ‘coordinate’ . . . or see ‘eye to eye'” on “their defense strategy.” And the judge so found because Boncy’s attorney had “‘his direction'” and Baptiste’s attorney had his own “‘in terms of how [they] were proceeding with the trial'” (the internal quotations are from Baptiste’s counsel’s testimony at the new-trial motion hearing, by the way).
This finding does not rest on thin air either — for the record shows that Boncy’s counsel spent much energy trying make Baptiste the real culprit in this conspiracy while distancing Boncy from Baptiste’s deception.
The bottom line is that despite what the government thinks, Boncy’s lawyer was hardly defending Baptiste. So this facet of the government’s reversal argument does not assist its cause.”
In conclusion, the court stated:
“The district judge (not we) actually heard the witnesses, saw how each counsel performed, and watched the jurors as the proceedings unfolded. That put her (not us) in the best spot to decide if the interest of justice demanded a new trial. For, to borrow the words of Judge Posner, “[t]he trial judge will always be in a better position than the appellate judges to assess the probable reactions of jurors in a case over which [she] has presided,” because she can understand, “as we cannot, . . . the atmosphere of the trial — that congeries of intangibles that no stenographic transcript can convey.” Perhaps if we had been there we would have decided matters differently. Or perhaps not. But because our job is not to play district judge, we cannot substitute our judgment for her discretion and ring-side insights — unless those insights sunk to an abuse of discretion. And as with its other claims, this multilayered argument does not satisfy the government’s heavy burden of showing an abuse of discretion.
We end this segment by again emphasizing a fundamental point. “The premise of our adversarial system is that appellate courts do not sit as self-directed boards of legal inquiry and research, but essentially as arbiters of legal questions presented and argued by the parties before them.” So in doing what judges are paid to do, we have taken — and, it turns out, rejected — the government’s arguments as we have found them. Maybe there is a better argument for why a new trial would not serve “the interest of justice” — e.g., maybe there is some other limiting principle to that legal standard’s broad reach. But if a better argument does exist, we need not deal with it today: it is enough for us to hold (as we do) that the arguments the government does make do not convince us that the reach of this broad standard should be circumscribed in this instance.
No one doubts (at least, no one should doubt) that “[t]he better the lawyers at a trial are, provided they are evenly matched, the more likely is the trier of fact to find the truth.” So while both sides here face the expense of retrial, “[t]he result will be a . . . proceeding much more likely to render a verdict in which the legal system and the public can have confidence.”
And thus, for the reasons recorded above, we affirm the judge’s grant of new trials.”
Fick & Mark attorneys Daniel Marx, William Fick, and Amy Barsky represented Baptiste on appeal.
Greenberg Traurig attorneys Jay Yagoda and Jared Dwyer represented Boncy on appeal.
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