June 28, 2022

DOJ drops charges against two defendants accused of FCPA violations

On June 27, 2022, the US Department of Justice (DOJ) moved to dismiss charges against Joseph Baptiste and Roger Richard Boncy, two executives of a company that promoted projects for the reconstruction of Haiti.

In June 2019 both had been both found guilty of conspiracy to violate the US Foreign Corrupt Practices Act (FCPA) and conspiracy to violate the Travel Act for their attempts to bribe Haitian officials to secure permits needed to advance a port development project.  According to evidence at trial, Boncy and Baptiste solicited funds from undercover FBI agents who were posing as potential investors in connection with the company’s proposed $84 million project to develop a port in Haiti.  As alleged at the 2019 trial, Boncy and Baptiste told the agents that the funds would be used to bribe Haitian government officials in exchange for securing approvals needed to move forward with the project.   Prior to the 2019 trial, Boncy had filed a motion to dismiss based on the U.S. government’s loss of two recordings of December 19, 2015 conversations between Boncy and an undercover FBI agent, which Boncy maintained were exculpatory.  The court denied the motion.

On March 11, 2020, the US District Court for the District of Massachusetts granted new trials for both Baptiste and Boncy on the basis of ineffective assistance of counsel.  The court found that Baptiste’s counsel’s failure to review discovery and prepare for trial was prejudicial to Baptiste, and that Baptiste’s counsel’s deficient performance placed undue pressure on Boncy’s counsel, causing him to take on the role of lead counsel for both defendants instead of effectively representing Boncy’s interests alone.  The DOJ appealed this decision to the Court of Appeals for the First Circuit, which on August 9, 2021 affirmed the district court’s decision to grant a new trial. 

Prior to the start of the new trial, which was set to begin in July 2022, Baptiste and Boncy filed a motion to dismiss stating that the U.S. government—which had attempted to recover the two missing December 19, 2015 recordings—had now destroyed audio files it had found in its attempt to recover those missing recordings.  The DOJ responded asserting that these newly destroyed audio files contained only white noise “with no discernable relationship to the investigation of this case.”  On June 24, 2022, the DOJ filed a supplemental brief in further response to the motion to dismiss, stating that on June 23, 2022, the FBI had—for the first time—provided a set of text messages to the DOJ, which included text messages relating to the December 19, 2015 conversations that were the subject of the missing recordings.  In particular, the DOJ stated that it had “ discovered a text message that describes . . . a statement by defendant Boncy that certain money would not be used to pay bribes.”  The following Monday, June 27, 2022, the DOJ filed its own motion to dismiss the charges against Boncy and Baptiste, acknowledging the “belated disclosure” of the text messages.  The DOJ Press Release accompanying the motion to dismiss noted that the DOJ’s “obligation to provide all discoverable evidence in its possession to the defense” was “a core principle of the criminal legal system, and stated that the dismissal was the result of the “recently discovered” text messages and was “in the interest of justice.”

Government’s Motion to Leave to Dismiss Superseding Indictment | USAG Rollins Press Statement