United States v. Baptiste

8 F.4th 30

UNITED STATES of America, Appellant,

v.Joseph BAPTISTE, Defendant, Appellee.

United States of America, Appellant,

v.Roger Richard Boncy, Defendant, Appellee.

No. 20-1400

No. 20-1401

United States Court of Appeals, First Circuit.

August 9, 2021

Alexia R. De Vincentis, Assistant United States Attorney, with whom Brian C. Rabbitt, Acting Assistant Attorney General, Robert A. Zink, Acting Deputy Assistant Attorney General, Jeremy R. Sanders, Appellate Counsel, Fraud Section, Criminal Division, United States Department of Justice, and Andrew E. Lelling, United States Attorney, were on brief, for appellant.

Daniel N. Marx, with whom William W. Fick, Amy Barsky, and Fick & Mark LLP, were on brief, for appellee Baptiste.

Jay A. Yagoda, with whom Jared E. Dwyer and Greenberg Traurig, P.A., were on brief, for appellee Boncy.

Before Howard, Chief Judge, Thompson, Circuit Judge, and Arias-Marxuach, District Judge.^*

THOMPSON, Circuit Judge.

Overview

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).¹

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.² 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 .

Guiding Legal Principles

Judges can grant a new trial if required in "the interest of justice," see Fed. R. Crim. P. 33(a) — though they should grant these motions only "sparingly" and to prevent "a perceived miscarriage of justice," see United States v. Veloz, 948 F.3d 418, 437 (1st Cir. 2020) (quoting United States v. Gramins, 939 F.3d 429, 444 (2d Cir. 2019) ). Applying abuse-of-discretion review, United States v. Gonzalez, 949 F.3d 30, 34 (1st Cir.), cert. denied, ––– U.S. ––––, 141 S. Ct. 327, 208 L.Ed.2d 69 (2020), we can affirm a judge's new-trial decision even if "there was sufficient evidence to convict," United States v. Rothrock, 806 F.2d 318, 322 (1st Cir. 1986). This review standard is multifaceted, requiring us to inspect "fact findings for clear error, legal issues de novo (in nonlegalese, with fresh eyes), and judgment calls with some deference." United States v. McCullock, 991 F.3d 313, 317 (1st Cir. 2021). Showing an abuse of discretion is especially difficult when, "as here, the judge who hear[d]" the new-trial motions "is the same judge who presided over the trial," because in that scenario, "substantial deference is due to the judge's perceptions." See Gonzalez, 949 F.3d at 34 (emphasis added). And we ultimately will reverse "only when left with a definite conviction that ‘no reasonable person could agree with the judge's decision,’ " see McCullock, 991 F.3d at 317 (quoting United States v. Cruz-Ramos, 987 F.3d 27, 41 (1st Cir. 2021) ) — a rule that stops us from switching our discretion for the judge's, see Rothrock, 806 F.2d at 321-22. But at the same time (and as the government is quick to note), a material error of law is never discretionary and so always is an abuse of discretion. See Gonzalez, 949 F.3d at 34.

To grant a new trial on an ineffective-assistance claim, a judge must find that counsel performed objectively unreasonably and that prejudice followed. See, e.g., United States v. Silvia, 953 F.3d 139, 142 (1st Cir. 2020). Deficient performance "requires showing that counsel made errors so serious that [he] was not functioning as the ‘counsel’ guaranteed the defendant by the Sixth Amendment." Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). And deficient performance prejudices the defense when it is reasonably probable "that, but for counsel's unprofessional errors, the result of the proceeding would have been different" — i.e. , "a probability sufficient to undermine confidence" in the result. Id. at 694, 104 S.Ct. 2052. The probability "of a different result must be substantial, not just conceivable." Harrington v. Richter, 562 U.S. 86, 112, 131 S.Ct. 770, 178 L.Ed.2d 624 (2011). But that does not require a showing that counsel's actions "more likely than not altered the outcome." Strickland, 466 U.S. at 693, 104 S.Ct. 2052 (emphasis added); see also Williams v. Taylor, 529 U.S. 362, 405-06, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000) (stating that this standard is a lesser showing than a preponderance of the evidence). And when assessing prejudice, a judge "must consider the totality of the evidence before the ... jury," because "a verdict ... only weakly supported by the record is more likely to have been affected by errors than one with overwhelming record support," Strickland, 466 U.S. at 695-96, 104 S.Ct. 2052 — though we judges must never forget that the purpose of the prejudice prong is to ensure a defendant has not suffered a fundamentally unfair or unreliable outcome, see id. at 687, 104 S.Ct. 2052.

Arguments and Analysis

The government does not quarrel with the judge's deficient-performance findings — findings premised on a long list of failures on Baptiste's lawyer's part (we hit the highlights, quoting from the judge's decision):

• 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.³

• 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.

But while the government makes no argument against the deficient-performance finding, the arguments it does present do not persuade us to reverse.

A.

The government starts off by insisting that "[t]he evidence of Baptiste's and Boncy's guilt was overwhelming," claiming that "[i]n call after recorded call" they "agreed to bribe Haitian officials" to grease the skids for the project. And according to the government, the...