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Friday Roundup

Roundup

Missing evidence, $10, and scrutiny alert.

It’s all here in the Friday roundup.

Missing Evidence?

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.

Similar to pre-trial briefing in the first trial (see here), Boncy released filed this pre-trial motion requesting an order compelling the government to turn over evidence in its possession.

The four page motion states in pertinent part:

“This is an FBI “undercover-sting” case. It wasn’t a real crime. As the government acknowledges, no cash bribe was ever made to any government official. Instead, this was a case engineered by the FBI. All of the government witnesses are from the FBI. In such a case – the purported crime the government seeks to criminalize is the actual intent or agreement to do a crime. Indeed, here, the sole count left against Mr. Boncy is a conspiracy charge. Intent and agreement are the disputed issues. They always have been.

Likewise, because this is an undercover case where the FBI choose to create evidence, the care, custody, collection and control of that evidence is extremely important. So too is any evidence or information that would “cast doubt on the admissibility of evidence that the government anticipates using in its case-in-chief, that might be subject to a motion to suppress or exclude, . . . [or] cast doubt on the credibility or accuracy of any evidence that the government anticipates using in its case-in-chief.”.

Knowing all of this, the government has nevertheless failed to provide material, exculpatory evidence. The law is settled that Mr. Boncy need not ask for such evidence. It is the government’s job to turn it over. The government, however, continues to fail at this requirement and, in some instances, refuses to respond at all. Accordingly, Mr. Boncy is now required to file this motion and seek an order requiring the government to turn over the items below and any and all other exculpatory evidence.

I. Evidence Related to the Destruction of Calls

At the first trial, and throughout this matter, Mr. Boncy has repeatedly sought all evidence related to the destruction of two telephone calls that Mr. Boncy had with an FBI undercover. It has been a recurring theme throughout this matter. Mr. Boncy maintains that these calls were exculpatory. Indeed, at the close of the first trial, the Court recognized that Mr. Boncy had a “colorable claim” that the evidence was exculpatory.

At trial, government witness Jammal King testified as to unspecified problems with a Boston computer, and that it was originally sent to Quantico and then returned to Boston. In addition, at the evidentiary hearing on the motion to dismiss, an FBI agent testified, under oath, that after the “malfunctioning computer” was returned to Boston it was examined by FBI personnel for “all audio files and [the agent received] a disk of those.”

In correspondence dated May 16, 2022, Mr. Boncy, through counsel, and with regard to the problematic computer, requested: (1) documents, to include internal reports, evidence records, emails, text messages related to this issue and/or its transfer; (2) any all documents related to the make and type of the malfunctioning Boston computer; (3) and all witnesses (besides King) that could testify to the unspecified problems; and (4) any and all documents related to any replacement computers and/or repairs conducted on the malfunctioning computer. In addition, with regard to the hearing testimony, Counsel also requested: (1) all communications or documents relating to this process, to include a list of recovered files; (2) the name of the agent or personnel that retrieved the files from the malfunctioning computer; and (3) a copy of the disk that was provided to the agent.

The government provided some limited redacted copies of what appear to be shipping records – but nothing else. Importantly, they have not identified the individuals involved in the matter and have not provided the computer disc that a government witness testified about. Such information (or lack of such evidence) is material and exculpatory. Evidence surrounding the circumstances of the alleged computer error, including the recovered contents, would allow Mr. Boncy to assess the credibility of the government’s claim.

WHEREFORE, Mr. Boncy respectfully requests that this Court enter an Order requiring the government to turn the requested information over immediately.”

$10

In 2020, Airbus resolved several bribery enforcement actions including actions in the U.S., U.K., and France.

As often happens, lawyers representing shareholders began to circle and securities fraud class actions were filed.

According to this recent report:

“Airbus investors … asked a New Jersey federal judge to greenlight a $5 million settlement resolving their claims that the defense contractor’s executives misled shareholders about corruption probes and a subsequent $4 billion settlement that led to multiple stock drops over a four-year period.

Operating Engineers Construction Industry and Miscellaneous Pension Fund, the lead plaintiff in the proposed securities class action, said in its motion for preliminary approval of the settlement that the proposed deal sets up a $5 million cash settlement fund, which will also cover attorney fees of up to 30% of the settlement and up to $200,000 in litigation expenses.

Once all necessary fees and expenses are subtracted, claimants are entitled to at least $10, the motion states.

“The settlement was reached by counsel with a keen understanding of the strengths and weaknesses of the case,” the investors said. “The settlement was negotiated by counsel with extensive experience in securities class actions, and with the benefit of substantial investigation, based on an intelligent evaluation of the merits of lead plaintiff’s claims, including the risk to recovery and likelihood of ultimate success.”

“The settlement constitutes a very good result for the class,” they added.”

Scrutiny Alert

In connection with the ongoing saga of Ericsson (see here), the company disclosed:

Yesterday, Ericsson disclosed:

“As previously announced, Ericsson has been engaged with authorities regarding the review and investigation of the Company’s conduct in Iraq. The United States Securities and Exchange Commission (SEC) has notified the Company that it has opened an investigation concerning the matters described in the company’s 2019 Iraq investigation report. It is too early to determine or predict the outcome of the investigation, but Ericsson is fully cooperating with the SEC.”

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