 Joseph Baptiste
More than a year later, October 30, 2018, a Massachusetts federal grand jury returned an indictment against Baptiste as well as 74-year-old Roger Boncy, a businessman who lived in Madrid, Spain. Boncy was the chairman and chief executive officer of a U.S.-based investment company called Haiti Invest LLC. Baptiste was on the company’s board of directors.
The indictment alleged that between August 2014 and December 2015, Baptiste and Boncy told the undercover agents that they would pass the payments to Haitian officials through a nonprofit that Baptiste controlled, the National Organization for the Advancement of Haitians (NOAH), which had been set up to help impoverished Haitians. The indictment said that two $25,000 payments had been wired to Baptiste. Baptiste was accused of using the money for personal use.
The indictment charged them both with conspiring to violate the Travel Act and the Foreign Corrupt Practices Act (FCPA), as well as aiding and abetting the violation of the Travel Act and Conspiring to commit money laundering. The indictment alleged that meetings were held in Boston to meet and discuss bribes to be paid. The meetings were recorded by the undercover agents.
The two men went to trial in U.S. District Court in Boston in June 2019. On June 20, 2019, after an eight-day trial, Baptiste was convicted of all three counts against him. Boncy was convicted of conspiring to violate the Travel Act and the Foreign Corrupt Practices Act. He was acquitted of the two other charges.
On August 26, 2019, Baptiste, who was represented by new counsel, filed a motion for new trial and/or acquittal. Boncy also filed a similar motion. Boncy's motion sought a new trial on the ground that his trial defense, handled by attorneys Jared Dwyer and Mark Berthiaume, was adversely affected by the failures of Baptiste's trial defense lawyer.
The motion for new trial was based on the failure of Baptiste’s trial defense lawyer, Donald LaRoche, to adequately defend the case.
The motion for new trial said, “This criminal case arose from a misguided FBI sting operation to expose suspected public corruption in Haiti. It proceeded based on ill-informed, stereotypical assumptions that, in Haiti, everyone is corrupt, everything is ‘pay to play,’ and every word – even ‘Christmas’ – is code for pay-offs and kickbacks. The FBI pursued the investigation by means of an undercover sting operation inexplicably targeting Dr. Joseph Baptiste, an American citizen of Haitian descent, a retired colonel in the U.S. Army, and practicing dentist in Silver Spring, Maryland, who has dedicated his life to improving the welfare of the Haitian people, in Haiti and elsewhere.”
According to the motion, “The trial produced no evidence that Dr. Baptiste ever paid a penny in bribes to any public officials in Haiti. And even in its closing argument, the prosecution could not cogently explain exactly what Dr. Baptiste allegedly conspired to offer, to whom, and in exchange for what specific actions by public officials in Haiti.”
At the heart of the case was the testimony of two FBI undercover agents about their interactions with Dr. Baptiste, primarily at two meetings in Boston. Throughout the trial, the motion said, “[T]he agents presented audio and video clips from the consensual recordings of these meetings, their other calls with Dr. Baptiste, and intercepted communications between Dr. Baptiste, Boncy, and others. After playing these clips for the jury, the agents opined that the often vague, confused discussions represented a clear, unlawful agreement (or agreements) to pay bribes and launder money in Haiti.”
The motion said that the two FBI agents “had never been to Haiti. They did not speak Haitian Creole (the language in which Dr. Baptiste and Boncy often spoke on the phone) and had no knowledge of Haitian business, politics, or law. The FBI never attempted to interview any of the public officials in Haiti to whom Dr. Baptiste supposedly offered bribes, much less confirm that the alleged offers were made. It did not subpoena any financial records or conduct any other investigation in Haiti to ‘follow the money’ that was allegedly laundered through Haitian banks and used to pay bribes.”
The motion also said that the agents did not seek any information from the Haitian government, the alleged victim of the alleged bribery scheme and conducted no due diligence concerning NOAH, which “over many years, advocated in the United States on behalf of Haitians and delivered humanitarian assistance in Haiti, such as emergency medical and engineering relief in the wake of the devastating earthquake in 2010.”
The motion said that “[i]nstead, the agents incorrectly and cynically assumed that NOAH was nothing more than a front for Dr. Baptiste to implement alleged ‘pay-to-play’ schemes.”
The motion said the jury convicted Dr. Baptiste because “[a]t almost every critical stage of these criminal proceedings, and in violation of his Sixth Amendment right to effective representation, it was as if Dr. Baptiste had no lawyer at all.”
The motion said, “Trial counsel’s performance was plagued by myriad deficiencies, including failing to conduct an adequate pre-trial investigation, review the discovery, and interview witnesses; failing to consult with potential experts on critical issues; conducting self-defeating cross-examinations or foregoing cross-examinations altogether; failing to challenge the prosecution’s case in any meaningful way; failing to call any defense witnesses, offer any defense evidence, or present any coherent defense theory of the case; failing to challenge the improper lay opinion testimony of the undercover FBI agents who interpreted nearly everything – including ‘Christmas cards’ and ‘Christmas bonuses’ – as code for bribery; failing to move for a severance, even after Boncy’s counsel cast Dr. Baptiste as fraudster who stole money from the FBI and lied to everyone, including Boncy; and failing to request jury instructions on important legal issues based on the trial evidence. At the end of the case, trial counsel could not even formulate his own closing argument, instead delivering nearly verbatim the suggestions of a family friend of Dr. Baptiste.”
Boncy’s attorney argued that Boncy was prejudiced by the failures of Dr. Baptiste’s attorney and entitled to a new trial.
The motions for acquittal said that “the prosecution failed to prove a conspiracy to bribe public officials in exchange for ‘official acts’…Because the prosecution did not expressly identify any ‘official acts’ in the indictment or its trial presentation, and because it failed to prove any contemplated ‘official acts’…there could be no conspiracy to violate the FCPA.”
The motions also said that the prosecution had failed to establish that the purported bribery scheme violated the FCPA, “because it failed to prove a connection between any specific planned payment and any specific contemplated act or decision of a particular foreign official.”
In March 2020, U.S. District Judge Allison Burroughs vacated both men’s convictions and ordered a new trial. Judge Burroughs cited “errors, omissions, and general lack of diligence” by LaRoche, Baptiste's trial defense attorney. The court ruled that LaRoche didn't review much of the documents and recordings prosecutors gave him before trial, didn't subpoena any witnesses, and only cross-examined two of the government's six witnesses.
“While he was not required to perform all of the numerous steps available to him to prepare for trial, the fact that he performed so few and in such a cursory manner is undeniably deficient,” the judge wrote.
The judge said that “by failing to review the discovery provided by the Government—in the form of documents, audio and video recordings, and transcripts of those records—prior to trial, LaRoche potentially failed to identify exculpatory material or material that would have supported any potential defenses. Reviewing these materials ahead of trial would also have assisted LaRoche by informing him as to the Government’s strongest evidence against his client, allowing him to prepare to discuss the evidence at trial.
“Further, if he had identified or interviewed potential witnesses or interviewed the Government’s witnesses, or if had identified and retained experts to testify to Haitian law or business practices, he might have presented a colorable defense for his client,” the judge declared. “Such a defense would include effective cross-examination of the government’s witnesses. Lastly, had LaRoche hired a translator to translate the audio and video recordings that were so central to the Government’s case, he might have been able to challenge any potential mistranslations or words capable of multiple meanings in either English or Haitian.”
The judge vacated Boncy’s conviction as well “because LaRoche’s deficient representation resulted in Defendant Boncy's counsel having to play an outsized role at trial rather than pursue his preferred defense strategy for his own client.”
The judge denied the motions for acquittal.
After the ruling, attorney Daniel Marx, who began representing Dr. Baptiste after the trial, told the Associated Press that Dr. Baptiste should “never have been prosecuted in the first place…He never paid a single dollar in bribes to anyone in Haiti. Dr. Baptiste only sought to encourage development in a poor country that he cares deeply about.”
The prosecution appealed. In August 2021, the First Circuit U.S. Court of Appeals affirmed the order granting a new trial for Dr. Baptiste and Boncy.
The appeals court noted just a few of LaRoche’s deficiencies, including his inability to open the discovery when provided electronically by the prosecution, as well as his “raising an entrapment theory, despite being told it had no legs—a blooper that essentially put Baptiste in the middle of a bribery scheme.”
On June 28, 2022, the prosecution dismissed the case against Dr. Baptiste and Boncy.
– Maurice Possley
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