First Circuit Affirms Rare Defense Win on Ineffective Assistance Claim

In United States v. Baptiste, No. 20-1400 (1st Cir. Aug. 9, 2021), the First Circuit affirmed a trial court’s unusual decision finding the deficient performance of counsel for one defendant warranted a new trial for two alleged co-conspirators.

The government accused Roger Boncy and Joseph Baptiste of conspiring to bribe Haitian officials to secure approval of a port project.  After a joint trial the jury found both guilty of conspiracy to violate the Foreign Corrupt Practices Act and the Travel Act.  The jury also convicted Baptiste of violating the Travel Act and for conspiracy to commit money laundering.  The jury acquitted Boncy of the latter counts. 

Baptiste’s new counsel moved for a new trial under Federal Rule of Criminal Procedure 33, arguing that trial counsel’s performance was ineffective.  Boncy sought the same relief because the deficient performance of Baptiste’s lawyer impaired Boncy’s Fifth Amendment due process right to a fair proceeding.  The district court granted both motions after an evidentiary hearing.  The court found that Baptiste was prejudiced by the deficient performance of his trial attorney.  Likewise, the court found that Baptiste’s attorney’s performance also prejudiced Boncy when his attorney was forced to play an outsized role at trial. 

The First Circuit affirmed.  To begin with, the government did not dispute that Baptiste’s trial attorney’s performance was deficient.  As the district court found, counsel did not review (or even open) all of the discovery produced by the government, did not get English translations of recordings even after learning that the government’s translations may contain errors, cross-examined only two of the government’s six witnesses and even then elicited damaging testimony from those witnesses, deferred to Boncy’s counsel to cross-examine the remaining witnesses although Boncy’s trial strategy was to portray Baptiste as the primary driver of any conspiracy, and pursued an entrapment defense that put his client at the center of the conspiracy, among other problems. 

The government argued that Baptiste’s conviction should stand because the evidence of his guilt was overwhelming.  In rejecting that argument the First Circuit emphasized that the focus of the prejudice inquiry is on the fundamental fairness of the proceeding.  The right to effective counsel is not limited to cases of actual innocence although the strength of the government’s case is a factor in the prejudice analysis.  The court also highlighted a problem with evaluating the strength of the evidence in ineffective assistance cases; that is, the evidence may look strong only because it went unchallenged as a result of counsel’s deficient performance. 

The First Circuit also disagreed with the government’s contention that Baptiste benefited from Boncy’s counsel, who took the lead on cross-examination.  The flaw with the government’s argument is that Boncy’s trial strategy was to blame Baptiste.  Boncy’s trial counsel accordingly elicited testimony harmful to Baptiste and was no substitute for Baptiste’s own attorney. 

Finally the First Circuit declined to adopt the government’s interpretation of the cumulative-error doctrine.  The government had asked that the court curb that doctrine where each individual deficiency did not require a new trial.  The court confirmed that the cumulative-error doctrine applies more broadly to cases in which combined errors led to an unfair trial even where each error considered individually would not justify relief.  

The First Circuit also found that the district court acted within its discretion when it granted Boncy a new trial.  The First Circuit recognized that a trial court has broad powers to grant a new trial under Rule 33 if the court for any reason concludes that there has been a miscarriage of justice.  Here, the district court found that Boncy was denied his Fifth Amendment due process right to a fair trial when his attorney was forced to play an outsized role at trial rather than his preferred approach of taking a minor role to emphasize his client’s minor role in the alleged conspiracy. 

Baptiste illustrates an unusual path for an ineffective assistance claim. Typically such claims require additional evidence and are litigated after a defendant’s direct appeal. Here, counsel secured the necessary evidence at a post-trial evidentiary hearing. That strategy had at least two benefits for these defendants. First, defendants promptly secured a favorable ruling without the delays associated with waiting until after the direct appeal. Second, defendants benefitted from the trial court’s more comprehensive powers under Rule 33 to grant a new trial if for any reason the district court finds that there has been a miscarriage of justice. A Rule 33 motion may succeed even where the district court does not believe there was reversible error. Had defendants pursued their claims on collateral review, their habeas petition would have succeeded only if they could show that there had been a denial of a constitutional right. Both Baptiste and Boncy made constitutional arguments here and may have succeeded on a habeas petition, but defense counsel should always consider whether a Rule 33 motion is a preferable alternative.