Wednesday, August 11, 2021

New trial for defendants who received ineffective counsel in white collar case...

 ...out of the First Circuit.  But represented by Greenberg Traurig lawyers Jed Dwyer and Jay Yagoda.* What's amazing in this case is not just the ineffective lawyer's conduct, but that the government tried to defend the convictions where the lawyer did not even have a computer that could open the voluminous discovery.  Shame.  Here's the introduction from the case (opinion here):

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.”

How bad was the lawyer.  Here's the start to the court's summary:

• He could not "open discovery produced by the [g]overnment." 

• He "did not provide copies of documents or audio and video recordings to . . . Baptiste, nor did they ever sit down together to review all of the materials that the [g]overnment had provided." 

• He did not "'thoroughly review' certain documents." 

• "[H]e [did] not investigate[]" the case "sufficiently to understand the import" of the government's evidence or to craft an appropriate response. • He did not get English translations of Haitian-Creole recordings, even after learning about "potential errors" in one of the government's translations. 

• He "did not subpoena any witness" or "formulate his own list of potential witnesses in support of . . . Baptiste's potential defenses." 

• "[H]e did not . . . identify or contact any expert witnesses that could have provided evidence on Haitian law or business practices." • He "continued to pursue an entrapment defense," even though "others had previously told him that the defense was not available to . . . Baptiste on the facts of the case" — a mistake that essentially put Baptiste in the thick of the conspiracy. 

• He "only cross-examined two of the [g]overnment's six witnesses, none of whom [he] had contacted or sought to interview prior to trial." 

• He "elicited damaging testimony" from the two he did cross. 

• And he deferred to Boncy's lawyer on the "cross-examinations of the remaining witnesses," even though Boncy's "trial strategy was to portray . . . Baptiste as the primary driver of the alleged conspiracy" — a conspiracy that Boncy's attorney insisted Boncy was not a part of.  


*Update -- There was some confusion in the comments about whether GT represented Bouncy at trial or just appeal.  Here's what happened: (1) GT represented Boncy at trial and got acquittals on all counts, except the 371/fcpa charge: (2) post-trial, they moved for a new trial for Boncy on the basis that co-defendant’s (Baptiste’s) counsel was ineffective; the court granted the motion; and (3) on appeal, 1st circuit affirmed that Boncy gets a new trial as district court held. 


Anonymous said...

May be worth clarifying that Dwyer and Yagoda represented Boncy -- they weren't the ones found ineffective. That was Baptiste's original trial counsel.

Anonymous said...

Wish we had judges like this. Sigh.

David Oscar Markus said...

9:39: Thanks. Fixed.

Anonymous said...

seems like boncy got a windfall

Rumpole said...

Every time I call a government witness to talk about the case I get a call from a prosecutor threatening me with obstruction of justice.

Anonymous said...

I would think in your trespass cases Rump that wouldn't be a big deal.

Anonymous said...

This is posted everywhere.

Tattoodtiger1 said...

Everyone with a bar card ain't equal...