A Just Cause Questions the Integrity of Justice and Due Process of the Appellate Court of the Tenth Circuit in the IRP6 Case

1

October 21, 2015 by socialaction2014

Source:
A Just Cause
October 21, 2015 10:04 ET

A Just Cause Questions the Integrity of Justice and
Due Process of the Appellate Court of the Tenth Circuit in the IRP6 Case

A Just Cause Contends That Appellate Court Conspired
With the Lower Court to Violate Due Process and Civil Rights of Wrongly
Convicted IRP6

DENVER, CO–(Marketwired – October 21, 2015) – A
Just Cause (AJC) continues to explore the injustices and inequities
that occurred in the IRP6 case, particularly with respect to the
Appellate Court decision, which side stepped multiple critical issues in
their decision against the IRP6, irresponsibly upholding the decision
of the lower court. The Tenth Circuit Court of Appeal for the IRP6 case
consisted of a three-judge panel that included Senior Judge Bobby R.
Baldock, Judge Harris L. Hartz, and Judge Jerome A. Holmes (Judge Holmes
wrote the opinion) (D.C. No. 1:09-CR-00266-CMA, Appellate Case
11-1492).
The IRP6 are six executives that worked at IRP
Solutions Corporation, which was raided in February 2005. After the
raid, false charges of mail and wire fraud were brought against the six
executives known as the IRP6
— David A. Banks, Kendrick Barnes, Demetrius K. Harper, Clinton A.
Stewart, Gary L. Walker, and David A. Zirpolo — who were all tried and
wrongly convicted in 2011 for failure to pay debts to staffing companies
related to completing software development work for sales to law
enforcement agencies, specifically the Department of Homeland Security
and the New York City Police Department (D. Ct. No. 1:09-CR-00266-CMA).
“There
are so many unanswered questions in the wake of the IRP6 Appellate
decision. There are missing transcripts that substantiate a violation of
their Fifth Amendment rights, violations of the Speedy Trial Act, and
expert witnesses who were denied the right to testify on behalf of the
IRP6. If you think about it, the Tenth Circuit appellate judges,
Baldock, Hartz and Holmes, simply rubber-stamped the decision of the
lower court. There is no evidence of them looking at the case with fresh
eyes or digging any deeper into the issues raised on appeal. The
appellate judges even ruled against previous Tenth Circuit precedent,
which is unheard of. The list just goes on and on,” states Lamont Banks,
Executive Director of A Just Cause.

“We
encourage everyone to look into the facts in the IRP6 case with an open
mind and consider the deception of the courts. A Just Cause is certain
that people will arrive at the same conclusion — many things went
terribly wrong in the IRP6 case and multiple parties, working on behalf
of the government as well as the court, have acted unlawfully and dealt
treacherously with the IRP6. A grave injustice occurred for these men,
all law abiding citizens with no prior criminal records, and it must be
rectified,” concludes Banks.
“One
of the most alarming and contentious issues in the IRP6 case pertains
to the 200 pages of missing transcript, which the trial judge
acknowledged as missing,” remarks Lisa Stewart, an executive of A Just
Cause. “This missing transcript is of the utmost significance because it
contains a critical exchange where District Judge Christine Arguello
compelled one of the IRP6 to testify. Court transcripts confirm multiple
instances of Judge Arguello threatening to close the case of the IRP6
prematurely. It is entirely too convenient that on the day in question,
when IRP6 contend they were compelled to testify and the records are
nowhere to be found. From the time of the court proceeding to date, the
requested court transcript has never been delivered to the IRP6,”
remarks Lisa Stewart, an executive of A Just Cause.
Court
records from the district court show that Court Reporter Darlene
Martinez admits to omitting 200 pages of the transcript, and that
Federal Judge Christine Arguello did not release the omitted pages (D.
Ct. No. 1:09-CR-00266-CMA, October 2011, Court transcript pages 2062
-2063). According to court records the presiding judge in the original
criminal case, Judge Christine Arguello stated, “First of all, the
unedited version (of the transcript) cannot be used for any purpose…
how many pages is it?” Martinez affirmed, “Over 200 pages.” Judge
Arguello further stated, “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).
The
Honorable Judge H. Lee Sarokin is a well-respected, retired federal
judge with many years of sitting on the appellate court. He has weighed
in on the IRP6 case, authoring a five-part article series, entitled ‘The Case of the Missing Transcript
on the Huffington Post. In part one, Judge Sarokin states, “Resolving
the issue should be a no-brainer, right? Look or listen to the
transcript; read or hear what the judge said and decide whether or not
the defendants reasonably concluded that at least one of them had to
testify. But here’s the rub. There apparently is no record or transcript
of the conversation available to either the defendants or the appellate
court… I have no doubt that whether or not they felt compelled to
testify depends exclusively on what the judge said to them at that
precise moment. To suggest that the court’s ‘exact language’ is
immaterial is ludicrous, particularly since the court and the defendants
disagree as to what was said. Certainly no judge would direct a
criminal defendant to testify against his or her own will, but it is
conceivable that something was said that reasonably led them (IRP6) to
that conclusion,” Sarokin concludes.
In Part 2 of his Huffington Post series, ‘The Missing Transcript Case Becomes More Curious‘,
the Honorable Judge H. Lee Sarokin, focuses on the “separate civil suit
was instituted against the court reporter to turn over the transcript.”
Though the civil suit was dismissed, after reading the court’s opinion,
Judge Sarokin wrote that the factual findings in that opinion “confirm
without question the defendants’ contention — not about what was said,
but rather that there is no record of what was said,” resolves Judge
Sarokin.
Court documents
from the January 2014 hearing show that Judge R. Brooke Jackson was
determined to get to the bottom of the transcript issue. He states,
“…ultimately those of us who work for the federal government and the
Justice Department have a goal, and that is to achieve justice,” (Case
1:13-cv-02260-RBJ Document 37 Filed 04/18/14 USDC Colorado Page 19).
Judge Jackson goes on to pose a question in open court to government
attorney Michael Johnson, “And if — I’m not saying it’s even likely, I
would rather think it might be improbable — but if something occurred
where a criminal defendant, by inadvertence, let’s say, felt that he was
forced to testify and objectively that a reasonable person could so
interpret something that a judge said and if that person then took the
stand when he otherwise would not have, that would not be just, would
it?” (Case 1:13-cv-02260-RBJ Document 37 Filed 04/18/14 USDC Colorado
Page 19).
Records show that
Mr. Johnson replied, “I agree, Your Honor, that would not. But those
are not the facts in this case,” (Case 1:13-cv-02260-RBJ Document 37
Filed 04/18/14 USDC Colorado Page 19). Judge Jackson responds, “Maybe
not, and that’s why my suggestion was let’s find out what the facts of
this case are. But what you are saying is, no, we want to have you,
Judge, explore the legal issues and see if we can get this thing
dismissed on the law and not have to go down that road and nobody will
ever know what really happened. Right?” (Case 1:13-cv-02260-RBJ Document
37 Filed 04/18/14 USDC Colorado Page 19).

Commending Judge R.
Brooke Jackson, who “in an incredibly detailed opinion considering the
miniscule nature of the claim, but obviously sensitive to the charges
asserted, made detailed factual findings,” Sarokin highlights Judge
Jackson’s finding by quoting his opinion in the civil trial, “No
statement like that which was recalled by the court or that which was
recalled by the defendants appears in the transcript…It is undisputed
that Judge Arguello said something that does not appear in the
transcript — either the unedited or the final version.”
“There
was a flip flop between Judge Jackson’s strong words at the hearing and
his final ruling that remains unexplained. He concedes definitely that
something is missing from the transcript, yet fails to hold the court
reporter and government accountable, dismissing the civil suit,” states
Banks. Nevertheless, Judge Sarokin writes that “…Having now resolved
the factual issue so clearly by an independent court, one cannot help
but wonder wherein lies the delay? 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?”
Part two is a cliff hanger with these questions left unanswered; however, Judge Sarokin leaves no doubt in Part 3, ‘The Case of the Missing Transcript Solved,’
where he outlines ten “uncontroverted facts upon which the [appellate]
court could reach a determination that the right against
self-incrimination was actually violated by the trial court even without
the critical transcript.”
“As an experienced and renowned
retired federal judge, Judge Sarokin drew logical conclusion based on
the facts in the IRP6 case and full reviews of the transcript and court
documents. His position is substantiated by years on the bench as a
District as well as an Appellate judge,” says Banks.

Judge
Sarokin maintained that “the Court of Appeals certainly [had] enough
evidence to conclude that the right against self-incrimination indeed
was, violated by the trial court; that defendants reasonably believed
that at least one of them was required to testify in order to have the
defense remain open; and that they succumbed to that threat, and
immediately voiced their objections. Lacking any competent evidence to
rebut those claims of constitutional violations, the claim of the
defendants must be recognized as valid — even without the missing entry
in the transcript,” stresses Sarokin.
The
Tenth Circuit Court of Appeals referenced the district court’s position
regarding the missing transcript and stated, “…[t]he 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,” (D.C.No.
1:09-CR-00266-CMA, Appellate Case: 11-1492, Document: 01019289332,
8/4/14).
Though the Tenth
Circuit’s three-judge panel of Baldock, Hartz and Holmes would later
uphold the lower court decision, stating the stand was taken
voluntarily, despite the ‘uncontroverted facts’ to the contrary. The
opinion by the Appellate Court failed to address the missing transcript,
except to state, “…[t]here is no substantive difference between the
unedited transcript and the final, official version…therefore, no
‘missing transcript,’ and nothing relevant to what occurred during the
bench conference has been destroyed…” (D.C.No. 1:09-CR-00266-CMA,
Appellate Case: 11-1492, Document: 01019289332, 8/4/14).
“The assertion by the court of appeals that there is no difference in
the unedited and final versions of the transcript stands in strong
agreement with the conclusion of Judge Sarokin and Judge Jackson: Judge
Arguello said something that is not on the record, any record; thus, the
Appellate Court could not definitely state whether a violation of
IRP6’s right against self-incrimination occurred,” says Stewart. “Judge
Jackson is on record in the civil proceeding stating that something was
omitted. It is still baffling that the Court of Appeals disregarded this
evidence and never demanded further investigation prior to upholding
the lower court’s decision,” concludes Stewart.
“If
something was said that compelled the IRP6 to take the witness stand
and that portion of the transcript happens to be missing, shouldn’t due
process demand that the appellate court reverse the lower court’s
decision? I think this is what Judge Sarokin was asserting in his
writings about the IRP6,” states Banks. Instead, the court of appeals
states that Mr. Barnes (IRP6) ‘voluntarily’ took the witness stand
therefore his Fifth Amendment rights were not violated (D.C.No.
1:09-CR-00266-CMA, Appellate Case: 11-1492, Document: 01019289332,
8/4/14). How does the court know for certain whether it was voluntary or
coerced if the record is missing? How does the Appellate Court skirt
the opinion Judge Jackson wrote in the civil suit, which stressed that
‘something was said [by Judge Arguello] that does not appear in the
transcript?” questions Banks (Case 1:13-cv-02260-RBJ Document 39 Filed
05/09/14 USDC Colorado, Page 8). Case law in the 10th Circuit (U.S. v
Haber) states a case must be reversed “…when the unavailability of a
transcript makes it impossible for the appellate court to determine
whether or not prejudicial error was committed with regard to a
challenged action,” (U.S. v Haber, No. 99-4088, May 24, 2001).
In
the face of the Appellate decision that was handed down, Judge Sarokin
disappointedly pens the final part of the five-part series in the
Huffington Post, entitled ‘The Case of the Missing Transcript Faces Another Defeat.’
In it, he writes, “Today is a sad day for me and certainly for the
defendants and their families in the IRP6 Colorado case. The Court of
Appeals has affirmed their convictions, but I still cannot shake my
belief that an injustice has occurred in respect to their guilt. Apart
from all that I have already said in the past about this case in
particular, there is the fact that every day we read of corporate fines
for criminal activities, but no personal charges against the executives
who directed or approved those crimes no matter how great the losses —
both personal and financial — or how many persons suffered from them,” (http://www.huffingtonpost.com/judge-h-lee-sarokin/deaths-caused-by-corporat_b_5348182.html).
Judge
Sarokin laments the stiff sentences in a case of failing to pay
corporate debt, stating, “The government’s contention that their
business was nothing but a scam defies reality,” and proceeds to ask a
series of common sense questions, “If a scam, would you single out law
enforcement agencies as your sole customers? Would you work for years
developing the program? Would you leave other gainful employment to join
in the venture? Would you hire former law enforcement personnel to work
on the project? Would you spend your own time and money for years to
improve it? Would you personally guarantee the corporate debts and risk
your own financial security? If a scam, wouldn’t the perpetrators make
some money out of it? The only possible way that the defendants could
profit was if the company were a success!” affirms Sarokin.
He
concludes his five-part series with the overwhelming conclusion, “The
government proved that the defendants incurred debts and did not pay
them, but it failed to prove that they did not intend to pay them when
incurred, because that was not their true intention. Now, although all
of the legal arguments have been neatly sewn up and put aside, I cannot
help but believe that the fabric of justice has been frayed in the
process.”
“It is remarkably
rare for a retired former appellate judge, or any judge for that matter,
to break ranks and speak to a case, on the record as Judge Sarokin has
on behalf of the IRP6. He speaks from the bench, though he is
technically off the bench, but he speaks for justice. His heart and his
conscious bid him speak to this injustice,” declares Banks.
The
IRP6 are family men, who supported their local church and volunteered
in the community. They are now serving stiff sentences of 87 to 135
months. “They deserve justice. A Just Cause will continue to expose the
injustices in this case and pursue every means to secure their release
and freedom,” concludes Banks.

To read Judge Sarokin’s May 2015 email letter in support of the IRP6 go to: http://media.wix.com/ugd/c392f0_4e19334e663c49628bdc8fc904f8c630.pdf
For more information about the story of the IRP6 or for copies of the legal filings go to http://www.freetheirp6.org.
Related press releases: http://www.a-justcause.com/#!2015-press-releases/cl69

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