Haitian Businessmen Seeks Dismissal of FCPA Case Over Destroyed Evidence, US Counters

Richard Boncy, a businessman and former Haitian ambassador-at-large charged in a Foreign Corrupt Practices Act bribery scheme, moved to dismiss the case on the grounds that the U.S. destroyed potentially exculpatory evidence. Filing the motion in the Massachusetts U.S. District Court, Boncy, joined by co-defendant and Haitian-American businessman Joseph Baptiste, said that the government's move to destroy the evidence -- a disk allegedly containing recordings of two calls with an undercover FBI agent -- "severely abrogates Mr. Boncy's constitutional rights" (United States v. Roger Richard Boncy, D. Mass. #17-10305).

The government opposed the motion, arguing it has acted in good faith at all times and that the defendants are merely attempting to relitigate the potentially exculpatory value of the recordings.

Boncy and Baptiste were previously convicted of the FCPA charges. The scheme involved the defendants paying millions of dollars in bribes to Haitian government officials for an $84 million port project in northwest Haiti. Following a jury trial, both were found guilty in June 2019, but were granted retrials by District Judge Allison Burroughs due to the ineffectiveness of Baptiste's defense. The U.S. Court of Appeals for the 1st Circuit then upheld the retrial motion.

In 2019, Boncy and Baptiste previously tried to dismiss the case over the government's destruction of the two call recordings with the undercover agent. While the government admitted to destroying the recordings, the court ruled against the dismissal motion after finding that it was a good faith mistake and that there wasn't enough evidence to establish that the recordings were exculpatory. The defendants then renewed the motion to dismiss, this time over a disk that is alleged to have the recordings on it.

"Mr. Boncy has once again been denied key, material, exculpatory evidence because of the government’s conduct," the defendants said. "The importance of this disk and the information therein has been known for a long time and this disk should have been maintained in a manner that reflects its import. The idea that two weeks before trial it has gone missing, and we should all just 'move on' severely abrogates Mr. Boncy’s constitutional rights. This conduct cannot be condoned, and the case should be dismissed. At a bare minimum, an evidentiary hearing is necessary."

The government opposed the motion, arguing that the motion is a mere bid to relitigate the potential exculpatory value of the lost recordings. "That argument must fail -- again -- because by [the date of the calls], the crime was complete, and as a matter of law, lack of agreement about the details of the execution of a scheme is irrelevant to the existence of an agreement as to the illegal object of the scheme," the brief said.

The U.S. also said that the government has acted in good faith at all times. The disk that was destroyed had audio files with no content or white noise and had "no apparent connection to this case," it said. A move to destroy such a disk is "commonsense," the government said. Lastly, the U.S. argued that Boncy cannot show that he lacks comparable evidence of the very things he claims to lack. At the very least, Boncy can just testify about the call -- something he refuses to do, the U.S. said.