Advocacy Group, A Just Cause, Seeks Investigation in IRP6 Case; Questions of Misconduct Leading to Invalid Prosecution and Conviction1
June 30, 2015 by socialaction2014
Source: A Just Cause
Advocacy Group, A Just Cause, Seeks Investigation in IRP6 Case; Questions of Misconduct Leading to Invalid Prosecution and Conviction
Serious Inconsistencies Generate Questions About How the IRP6 Case Made It to Trial and Led to a Gross Injustice, Says Advocacy Group, A Just Cause
DENVER, CO–(Marketwired – June 30, 2015) – Advocacy group, A Just Cause, continues to explore grounds for investigating the indictment and prosecution in theIRP6 case, and question the validity of the convictions (D. Ct. No. 1:09-CR-00266-CMA).
The IRP6 case concerns an African-American company (IRP Solutions Corporation) in Colorado that developed the Case Investigative Life Cycle (CILC) criminal investigations software for federal, state, and local law enforcement. The IRP6 (David A. Banks, Kendrick Barnes, Demetrius K. Harper, Clinton A. Stewart, David A. Zirpolo and Gary L. Walker) were convicted in 2011 after being accused of mail and wire fraud. The defense argues that key questionable events in the case contributed to a wrongful conviction (D. Ct. No. 1:09-CR-00266-CMA). The IRP6 are requesting Attorney General Loretta Lynch to conduct an investigation into acts of misconduct.
“As the IRP6 case lingers on, there are more questions than answers as to how this case even got into the courts,” ponders Lamont Banks, A Just Cause Executive Director. “A Just Cause has reviewed the IRP6 case from top to bottom and there are numerous inconsistencies which leads one to conclude that procedural and legal violations occurred. Individually one might look at a particular procedural or legal action in this case and try to explain it away, but when you look at all of the inconsistencies collectively, it begins to form a picture of a conspiracy of the worst kind against six innocent men,” expressed Banks.
“A Just Cause has compiled a timeline that shows critical events dating back to February 2005 when the IRP6 and their company IRP Solutions were subjected to what we have determined to be a gross injustice,” says Sam Thurman, A Just Cause. “When one looks at the events that occurred and review laws that govern those actions, the acts by certain folks in the federal government don’t pass the smell test,” Thurman added.
Records show that IRP Solutions Corporation was raided in February 2005 after a search warrant affidavit was executed stating that the company was a “purported” software development company. Court records show that FBI Agent John Smith executed the raid on the company although the agent was aware that the company was legitimate. “According to records in discovery, IRP Solutions was raided by the FBI although the federal government was in possession of sworn affidavits stating that the company was conducting legitimate business and creating a legitimate software package,” says Banks. Records show that retired federal agent Gary Hillberry was working at IRP Solutions as a consultant at the time of the raid and had provided a sworn affidavit to Agent Smith prior to the raid which stated, “…IRP Solutions truly had a viable law enforcement product and appeared to be moving forward to acquire state and federal law enforcement contracts for their product…”. “In addition to statements like that of retired agent Hillberry, A Just Cause found that Agent Smith had been in contact with IRP Solutions prospective customers like the Department of Homeland Security and the NYPD and confirmed that there was legitimate business activity. With that knowledge in hand, how can a raid be justified under the auspice that the company was a ‘purported’ software development company?” ponders Banks.
“The timeline compiled by A Just Cause clearly reveals that something is not right about the IRP6 case,” argues Banks. “Right from the start things don’t add up. Just a few months after the company is raided, the FBI sends a letter to one of the company’s debtors stating that it is a civil matter, but as the timeline will show, a vindictive prosecution would unfold,” adds Banks.
Court records show that in August 2005 FBI Special Supervisory Agent Jean M. Andersen sent correspondence to an IRP Solutions vendor (Mr. Robert Grabowski) stating, “…we (FBI) are unable to assist you in this matter and therefore no investigation will be conducted by the Federal Bureau of Investigation. However, the FBI has made it a matter of record. We feel this case would be best handled civilly, and have noted that you have initiated legal action against the company (IRP)…”. (D. Ct. No. 1:09-CR-00266-CMA).
Court records show that the IRP6 were indicted in May 2009. “What’s interesting about this is that the indictment against the IRP6 came after the case was presented to a second grand jury,” explains Banks. The IRP6 argue that the first grand jury that heard the allegations against them did not return an indictment, stating that the case was a debt case and that no criminal activity had occurred. Records show that FBI agent Robert Moen was the only witness called before the second grand jury and an indictment was handed down shortly afterwards. “It is our understanding that impanelling two grand juries to hear the same allegation against a person(s) is not normal, so the manner in which this occurred is highly questionable, especially considering the fact that several witnesses were called in the first grand jury (which didn’t indict), but only one was called during the second grand jury (which rendered an indictment),” adds Banks.
According to the discovery documents, prior to the 2009 indictment, executives of IRP continued to try to sell the CILC software. According to IRP executives it was their plan to continue to try to make sells, generate revenue, and settle their debts. “IRP executives found out that Assistant U.S. Attorney Matthew Kirsch impeded the company from doing business by contacting prospective customers and telling them ‘that an indictment was coming’, and to not do business with IRP,” explains Banks. Records show that in February 2009 IRP Solutions was talking with the City of Philadelphia regarding the CILC software. Gery Cardenas, Director of Information Technology for the Philadelphia Police Department, was interviewed by FBI agent Jennifer Ngo regarding the IRP Solutions case. “PPD (Philadelphia PD) was very close to having the (CILC) product installed prior to the discovery of the IRP investigation,” said Cardenas, according to Ngo’s interview notes. Discovery also shows that Philadelphia Inspector General Amy Kurland was also contacted by AUSA Kirsch and told, “an indictment was coming” against IRP executives. “As a result of the contact by the AUSA the engagements with Philadelphia didn’t come to fruition for IRP. The City of Philadelphia canceled both of IRP’s engagements with the Philadelphia Police Department and the Philadelphia Inspector General’s Office after AUSA Kirsch’s conversation,” says Banks. “This turn of events is particularly interesting because not only did AUSA Kirsch tell agencies not to do business with IRP Solutions, but when the case went to trial he motioned the court to prohibit IRP from discussing any business activities after February 2005 (when the raid on the business occurred),” says Banks. “Court records show that the motion to prohibit discussing post-Feb-2005 business activity was granted, thus putting the jury in a position of not hearing all of the facts about the case,” Banks adds. “Two things happened in the situation with Philadelphia. First if the AUSA hadn’t interfered, IRP could have closed business and settled its debt. And secondly, if the jury had been allowed to hear all of the facts, the government’s theory of fraud by a bogus company would have been shot down and the jury could have easily acquitted,” Banks concludes.
“Prior to the case going to trial, there was yet another opportunity in September 2010 for the federal government to dismiss the IRP6 because the software that IRP was developing was analyzed by a government approved forensics analyst,” says Banks. Court records show that Forensic Analyst Don Vilfer, of the software forensics analysis firm Califorensics, compiled a written report stating, “The CILC software did not appear to be ‘vaporware’ but included a large amount of complex coding that would have required significant development (software development). The CILC software was functional at the time of the search warrant (making reference to the February 2005 raid on the IRP Solutions offices). The software contained many notable features, making it a functional product for the intended consumer. There is a market for the functionality that CILC software offers and it (CILC) would undoubtedly be of interest to many law enforcement agencies.” The Califorensics written reportconcluded, “…it appears the CILC software (IRP Solutions) strives to… manage information throughout the criminal justice pipeline. No one software application would meet the needs of all agencies, but the functionality that we observed… would undoubtedly be of interest to many law enforcement agencies.” Records show that Vilfer is an Attorney, a Certified Fraud Examiner, a Certified Analyst for Computer Forensics and Decryption, and a former FBI Supervisory Special Agent for the White Collar Crime and Computer Crimes Squad. (D. Ct. No. 1:09-CR-00266-CMA).
“When you review the entire timeline of the IRP6 case, there are several key indicators that show that officers of the court were not interested in justice, but seemed to be more about placing obstacles in the path of the IRP6,” says Banks. Court records show that the IRP6 filed a motion to dismiss their court appointed attorneys after the attorneys refused to work with them to develop a proffer and meet with the U.S. Attorney John Walsh. The IRP executives filed a Pro Se Motion in U.S. District Court for the District of Colorado (Judge Michael E. Hegarty, U.S. Magistrate Judge). The motion was granted to allow the IRP executives to proceed as Pro Se.
Court records show that the IRP6 case went to trial in September 2011. “It was clear shortly after the trial started that the prosecution was trying to prevent the IRP6 from presenting a case that would lay all the facts out for the jury,” says Banks. “During a post trial interview, one of the jurors stated that the jury kept waiting on the IRP executives to present their evidence of innocence. The jury never heard most of the evidence of innocence because the prosecution objected and Judge Arguello (the presiding judge) sustained most of the objections, thus putting the IRP6 at a disadvantage,” adds Banks.
“Records from the trial show that the IRP6 were convicted in October 2011, but there were several inconsistencies and questionable actions that preceded that conviction,” says Banks. Court records show that expert witnesses Andrew Albarelle and Kellie Baucom were prevented from testifying. Their testimony would have explained that IRP executives conducted business according to industry standards. Court records further show that Assistant U.S. Attorney Matthew Kirsch asked the court to prohibit the IRP executives from entering evidence/events, etc. post February 2005. Judge Arguello granted the motion. Court records show that the IRP6 motioned for dismissal arguing that Judge Arguello violated their constitutional rights by forcing them to take the witness stand against their will. Records show that when the IRP6 requested transcripts showing the violation (which occurred during a sidebar bench conference), Judge Arguello did not provide the transcript. “A Just Cause has found through discussions with attorneys and experienced judges that missing transcripts is definitely grounds for a dismissal or retrial, but neither happened in the IRP6 case,” says Banks.
Court records show that prior to the trial completion, and during the appeals process, the IRP6 argued that their Fifth Amendment right had been violated, but that the court transcript pertaining to a sidebar bench conference was missing from the official court record (D. Ct. No. 1:09-CR-00266-CMA). Records show that Darlene Martinez (Federal Court Reporter in the IRP6 case) affirmed in court to federal Judge Arguello that the unedited/original transcript of the bench conference consisted of 200 pages. Court records confirm that the IRP6 asked Judge Arguello for the unedited version of the transcript. Judge Arguello questioned Martinez, “How many pages is it?” Martinez affirms, “Over 200 pages.” Judge Arguello further states, “Over 200 pages… for no purpose that I can see that would be served by having that at this time. I am not going to have an expedited, and unedited version (of the transcript) delivered to the defendants (IRP6),” concludes Arguello. (D. Ct. No. 1:09-CR-00266-CMA, October 2011, Court transcript pages 2062 – 2063).
According to 28 U.S. Code § 753 — Reporters (Court Reporter’s Act), all proceedings in criminal cases had in open court shall be “…recorded verbatim…”. 28 U.S. Code § 753 further states, “The reporter or other individual designated to produce the record shall attach his official certificate to the original shorthand notes or other original records so taken and promptly file them with the clerk who shall preserve them in the public records of the court for not less than ten years.” (28 U.S. Code § 753 — Reporters (Court Reporter’s Act))
“A Just Cause argues that court reporter Darlene Martinez and Judge Arguello had an obligation based on the Court Reporter’s Act to deliver a full and complete certified transcript,” states Banks. “When Martinez certified, by signature, that the transcript that is on file is a complete verbatim recording of the IRP6 proceedings, that provides the Attorney General solid grounds for an investigation because the record that is on file contradicts that certification,” argues Banks. Court records further show that in August 2013 A Just Cause filed a civil lawsuit against Darlene Martinez for the missing transcript. Court records go on to show that in May 2014 Judge R. Brooke Jackson (Denver Federal Court) dismissed the case. “This is another turn of events that involves serious inconsistencies,” says Banks. “Judge Jackson dismissed the case, yet in his opinion he stated that there is no question that ‘something’ is missing from the transcript. If ‘something’ is missing, then how can the case be dismissed without demanding that the court reporter turn over all of the records,” emphasized Banks.
“Records show that Attorney Gwendolyn Solomon filed motions to the court to have the transcript released and A Just Cause sent numerous letters to the courts, to DOJ and Senators,” says Thurman. “These types of efforts have proven to be productive in that members of Congress, Senators, other Attorneys and Judges are reviewing this case with great scrutiny,” adds Thurman. “Retired federal Judge H. Lee Sarokin wouldn’t take our word for it regarding the injustice, but rather reviewed all of the court documentation personally and came to the conclusion that a gross injustice had occurred,” Thurman shares. “Others that are looking into this case with a critical eye include The Ways and Means Committee on Capitol Hill,” adds Thurman. “Legislators and staffers on Capitol Hill are interested in why the church the men (IRP6) attended was subjected to injustice by federal investigators from the FBI and when church banking records were seized without subpoenas. Even banking records of the Pastor and some of the church members were seized without subpoenas,” adds Thurman. “Now looking at this collective timeline of events, it should be clear that there were a lot of inconsistencies and abnormalities in the IRP6 case,” adds Thurman.
“Regarding the transcript, it is the position of the IRP6 and A Just Cause that the appellate court did not properly disposition this matter,” argues Thurman. Records show that the appellate court opinion stated, “The court has acknowledged that a portion of the sidebar was not transcribed.” Id. at 431 (Order Rejecting Proposed Stip., filed Oct. 16, 2012); see R., Vol. 1, at 1591 (noting that a “portion of the sidebar was not transcribed by the court reporter”). As the court has put it, “[f]or whatever reason, whether the parties spoke too far from the microphone or the court reporter took off her headphones, the court reporter did not hear everything that was said at the sidebar and therefore did not transcribe anything besides what is contained in the edited transcript.” 12 Supp. R., Vol. 1, at 430. “The opinion of the appellate court and the actions of the court are baffling,” says Thurman. “The court acknowledges that a critical portion of the transcript is not available, yet they did not reverse the conviction,” ponders Thurman.
According to articles published in The Huffington Post by Retired Federal Judge H. Lee Sarokin, the IRP6 have reason to question the conviction and sentencing in their case. Judge Sarokin wrote a five-part series sharing his thoughts of the IRP6 case. In Part 2 of Judge Sarokin’s series (May 2013) he wrote, “If there is no way to determine whether or not the 5th Amendment rights of the defendants were violated, does the Court of Appeals have any other choice but to either reverse and remand for a new trial or dismiss?” (http://www.huffingtonpost.com/judge-h-lee-sarokin/the-missing-transcript-ca_b_5334328.html). In July 2014, Sarokin pondered several questions. “.[the] case itself raises so many unanswered questions: Why wasn’t the critical conversation regarding the Court’s direction to the defendants upon which they base their constitutional violation recorded? Why did these defendants with no criminal records, no risk of flight, convicted of a non-violent crime receive such harsh sentences — 7 to 11 years and repeatedly be denied bail pending appeal?” pondered Sarokin (http://www.huffingtonpost.com/judge-h-lee-sarokin/the-case-of-the-missing-t_2_b_5619097.html). Judge H. Lee Sarokin served on the United States District Court (N.J.) appointed by President Carter, and the United States Court of Appeals (3rd Cir.) appointed by President Clinton. He retired in 1996 after 17 years on the federal bench and now resides in Rancho Santa Fe, CA.
“In addition to the other inconsistencies in the IRP6 case, A Just Cause questions why it took nearly a year for the appellate court to render a decision,” questions Thurman. “The men were incarcerated in July 2012 but a decision wasn’t rendered until August 2014. And during this period of time there were several mixed messages coming from the appellate court and the Court Clerk for the 10th Circuit,” adds Thurman. “One assistant to an appellate judge said that the decision had long been sent back to the clerk’s office (Denver), but the clerk’s office would contradict that and say that they were waiting on input from the judges. In another communication, the clerk’s office would say that it was with the writing judge. It is this type of inconsistency and altered stories that point to the basis for the claim that there was misconduct in the IRP6 case and an investigation is warranted for criminal misconduct and/or interference in the judicial process,” concludes Thurman.
“The questionable activities in the IRP6 case touches every level of the judicial process,” says Banks. “The investigation and warrant process has to be questioned because the FBI lead investigator got the search warrant and raided the offices of IRP Solutions under false pretenses. The grand jury process was violated because the decision of the people in the first grand jury was ignored and a second grand jury only heard from one witness and didn’t receive all of the facts. The criminal trial was flawed for several reasons. Court appointed attorneys didn’t do due diligence. Evidence of business activity from post-Feb 2005 was not allowed by the judge. Evidence of the legitimacy of the business and the product (Califorensics analysis) was not allowed. Expert witness testimony was not allowed. The IRP6 were forced to testify by Judge Arguello, but the transcript showing the violation disappeared. Darlene Martinez violated the Court Reporters Act, and this violation was not pursued by the U.S. Attorney, DOJ, the criminal courts, the civil courts, or the Colorado Senators. The court of appeals did not act expeditiously in matters related to the IRP case, and there were several questions to arise in the handling and decision of the appeal,” argues Banks.
“A Just Cause will do a deep dive into several of the inconsistencies during the organization’s weekly blogtalk radio program, AJC Radio (www.ajcradio.com),” says Banks. “The issues raised in the IRP6 case identify serious breakdowns in our judicial process,” adds Banks. “A Just Cause will continue to fight for the exoneration of the IRP6 because this case highlights a gross injustice. We must continue to raise these issues for the IRP6, but also to help prevent this type of thing from happening to someone else,” concludes Banks.
For more information about the story of the IRP6 or for copies of the legal filings go tohttp://www.freetheirp6.org.
Related press releases: http://www.a-justcause.com/#!press-releases/c21pq