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 recently filed this pre-trial motion requesting an order compelling the government to turn over evidence in its possession.
Boncy’s recently filed motion to dismiss states:
“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.”
In its opposition to the motion to dismiss, the DOJ:
“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”
Boncy’s reply brief states:
“The government, without even a cursory nod to potential error on its own part or a mention of how the case agent misled the Court and the Parties with his prior testimony, attempts to avoid the repercussions of its misconduct by claiming that the destroyed disk and hard drive contained nothing of value but “junk audio files” that were “contentless.” Of course, to know this, we must take the case agent’s word. But that is the same case agent who testified that he was given a disk and now claims that is not the case.
Putting aside the cavalier tone of the government’s response, this reply is offered to express that while research and consultations continue, undersigned counsel has spoken with an expert in the field. Preliminary discussions with the highly qualified expert who was once employed by the FBI, indicate that listening to a .wav file and noting “white noise” is not conclusive evidence that the .wav file had no intelligible content. Rather, such files (if they existed) could be examined to see if they were properly coded at the time of download, whether the proper code was installed on the machine being used to listen to the files, and other actions. And, it is not outside this expert’s experience that the files could indeed have been rendered intelligible and not just “white noise.” Of course, without the hard drive or disk – that is no longer possible. Undersigned counsel is prepared to offer testimony to this effect at the evidentiary hearing.
Thus, the government’s claim that these files were “junk” and therefore could be destroyed without concern – which is a doubtful proposition of its own –falls flat. Accordingly, the Motion to Dismiss should be granted.”
On Friday, the DOJ filed a short supplemental brief which states 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.”
