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Judicial Decision

This post provides updates on the DOJ’s appeal of the new trial recently granted to FCPA defendants Joseph Baptiste and Roger Boncy as well as the SEC’s attempt to serve FCPA defendant Asante Berko.

DOJ First Circuit Appeal

As highlighted in this prior post, in March U.S. District Court Judge Allison Burroughs (D. Mass.) granted Joseph Baptiste and Roger Boncy a new trial based on ineffective assistance of counsel after the defendants were convicted of Foreign Corrupt Practices Act and other charges in connection a Haitian bribery scheme.

This prior post noted that the DOJ was appealing to the First Circuit and recently the DOJ filed its opening brief and framed the issues as follows:

  1. Whether the district court erred as a matter of law by finding prejudiceresulting from ineffective assistance of counsel without determining that anypurported error or errors created a reasonable probability of a different outcome in the trial
  2. Whether the district court erred as a matter of law by granting a new trial to a defendant who had effective counsel, based on the deficient performance of a co-defendant’s counsel, despite this Court’s precedent rejecting an identical claim on the ground that Sixth Amendment rights are personal in nature and cannot be asserted vicariously.

In summary fashion, the DOJ argues:

“Without proof of both deficient performance and prejudice to the defendant, “it cannot be said that [a] conviction . . . resulted from a breakdown in the adversary process that renders the result unreliable.” Strickland, 466 U.S. at 687. And yet, in granting Baptiste’s motion for a new trial, the district court effectively reached that conclusion based on deficient performance alone. The court did not identify any specific materials, witnesses, or avenues for cross-examination that would have undermined confidence in the jury’s verdict if only they had been presented at trial. Instead, the court considered only the theoretical possibility that Baptiste’s defense might have been more “colorable” had his counsel been better prepared. To satisfy Strickland’s prejudice standard, however, “[t]he likelihood of a different result [but for counsel’s deficiencies] must be substantial, not just conceivable.” Harrington v. Richter, 562 U.S. 86, 112 (2011). The case against Baptiste was overwhelming, and nothing in LaRoche’s performance could reasonably have affected the jury’s understanding of key evidence of guilt.

The district court also erred in ruling that Boncy was prejudiced by Baptiste’s counsel’s deficiencies. In addition to failing to undertake a proper analysis of prejudice as it related to Boncy, the district court, and Boncy, failed to identify a single case where a court granted a defendant relief on the basis of the ineffective assistance of another defendant’s counsel. And in fact, this Court has expressly considered and rejected such a claim on the ground that the Sixth Amendment right to counsel is “personal in nature and cannot be asserted vicariously.” United States
v. Sabatino, 943 F.2d 94, 96 n.1 (1st Cir. 1991). The district court therefore erred by even entertaining Boncy’s claim of vicarious ineffective assistance. Moreover, the claim would fail even if construed as an argument that Boncy was prejudiced by joinder of the trials due to the presentation of conflicting defense strategies. Indeed, the district court previously determined that Boncy’s and Baptiste’s defenses were not irreconcilable, and, even after granting the defendants’ respective motions for a new trial, the court held that they should be retried together.

The district court’s failure to properly apply Strickland’s prejudice standard requires reversal.”

Berko Enforcement Action

As highlighted in this prior post, in April the SEC announced a civil complaint against Asante Berko (a former Executive Director of Goldman Sachs International) with Foreign Corrupt Practices Act violations and other charges for “orchestrating a bribery scheme to help a client [a Turkish energy company] win a government contract to build and operate an electrical power plant” in Ghana.

Recently, the SEC requested that the Court allow it to serve the summons and complaint against Berko by e-mail and by serving his U.S. counsel.

According to the SEC, Berko currently resides in Ghana and is on notice of the SEC’s claims against him given that he has disputed the allegations publicly. According to the SEC, its request to serve Berko through his Gmail address “satisfies constitutional due process requirements because it is reasonably calculated to provide him with notice of this action and give him the opportunity to respond.” According to the SEC, the Gmail address is one “Berko has used for numerous years for both work and for personal use” and is the e-mail address referenced in the complaint “that Berko used to hide the scheme from his employer’s compliance department and through which Berko sent and received many of the communications quoted in the complaint.”

As to U.S. counsel, the SEC stated that “in May, counsel commenced representing Berko for the purpose of settlement and since May, the Commission’s counsel and Berko’s counsel have had several conversations about the terms of a potential settlement.”

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