Advocacy Group, A Just Cause, Questions If Jury Instructions Negatively Impacted the IRP6 Case

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Why Didn’t Federal Judge strengthen the jury instructions to clarify whether there was intent by the IRP6 to commit a crime, ponders A Just Cause

Free The IRP6

The moral arc of the universe is long, but it bends toward justice. MARTIN LUTHER KING, JR., A Testament of Hope

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 (Kendrick Barnes, Gary L Walker, Demetrius K. Harper, Clinton A Stewart, David A Zirpolo and David A Banks) were convicted in 2011 after being accused of mail and wire fraud. (D. Ct. No. 1:09-CR-00266-CMA). The IRP6 have been incarcerated for over 18 months in federal prison in Florence, Colorado while their case is under appeal.

Court records show that the IRP6 challenged the proposed jury instructions but their challenge was denied by federal Judge Christine Arguello. Records show that the IRP6 requested that the jury instructions include a definition of scheme to defraud and that the jury instructions would elaborate on the term “intent."

Court transcripts show that David Banks argued before the court regarding jury instructions. “I want to at least get on the record for the moment, Your Honor, …we presented our definition as far as ‘scheme to defraud’ was concerned. And we would ask that, …Your Honor, that the standard definition that is a part of the mail fraud Instruction 4, under U.S.C. 1341(b), annotated as is in that statute”, argued David Banks, IRP Solutions COO (IRP6). “And I guess we question -- this looks like a -- now the Government has made what looks like a substantial change to the way the statute currently reads," Banks elaborated (D. Ct. No. 1:09-CR-00266-CMA, 27 September 2011).

According to transcripts of the trial, Judge Arguello rejected the IPR6 request to provide clarification in the jury instructions regarding “intent.” “The defendants' competing instruction on that included lengthy definitions of "specific intent to defraud" and "materiality." The specific intent proposed by the defendants was "an evil ambition to deceive or swindle or to deprive someone of something of value and to cause financial harm." And the Court found that definition to be confusing and an unnecessary substitute for the Tenth Circuit Pattern Instructions," states Judge Christine Arguello, Federal Judge, United States District Court for the District of Colorado (D. Ct. No. 1:09-CR-00266-CMA, 27 September 2011). “The Tenth Circuit has observed that "The term 'specific intent' is often confusing, requiring further elaboration to clarify precisely what the accused must know and intend," added Arguello (D. Ct. No. 1:09-CR-00266-CMA, 27 September 2011).

Court records further show that Judge Arguello stated, “I also found it unnecessary to include the defendants' proffered instruction entitled "mistake, negligence and recklessness," because it contains overly broad statements of the law, and would be distracting to the jury.” (D. Ct. No. 1:09-CR-00266-CMA, 27 September 2011)

According to the court transcript, the IRP6 argued that it was important that the jury instructions elaborate on the subject of “intent." “…Obviously the underpinnings of our defense will be based on that specific intent," petitioned Banks. “And the reasons we engaged in the business we engaged in, the reason we engaged staffing companies in the first place, obviously is going to go to the core of the specific intent to defraud. We just don't think that the intent to defraud clearly annotates that specific intent of requirement. So that would be our objection," Banks objecting to the judges comments that further clarification of “intent” was “unnecessary." Court records show that Judge Arguello denied the request of the IRP6 (D. Ct. No. 1:09-CR-00266-CMA, 27 September 2011).

“Providing clarification is exactly what the IRP6 wanted to do," asserts Sam Thurman, A Just Cause. “According to the transcript, it doesn’t appear that the Tenth Circuit prohibits using the term ‘specific intent’, it seems that they have stated that it requires further elaboration. We question why IRP6’s request to ‘elaborate’ was rejected," adds Thurman.

The Congressional Research Service (CRS) compiled a report for Congress on mail and wire fraud. The report included a section on elements of mail and wire fraud. The CRS report states, “Intent: Under both statutes (mail and wire), intent to defraud requires a willful act by the defendant with the intent to deceive or cheat, usually, but not necessarily, for the purpose of getting financial gain for one’s self or causing financial loss to another. A defendant has a complete defense if he believes the (alleged) deceptive statements or promises to be true or otherwise acts in good faith. A defendant has no such defense, however, if he blinds himself to the truth. Nor is it a defense if he intends to deceive but feels his victim will ultimately profit or be unharmed.” (Congressional Research Service: Mail and Wire Fraud: An Abridged Overview of Federal Criminal Law, Charles Doyle, Senior Specialist in American Public Law, July 21, 2011,

“According to the Congressional Research Service, an element of mail/wire fraud clearly calls out ‘intent’. The fact that the judge did not allow elaboration on this subject in the jury instructions is troubling and makes one wonder if the jury had been provided additional definitions and/or explanation, would they have returned a different verdict," ponders Thurman.

A Just Cause is an advocacy group that is examining the case of the IRP6. “A Just Cause is troubled by cases like the IRP6 where there are several apparent irregularities," states Thurman. “When we look at the compilation of findings in this case, it makes the organization push even harder for an inquiry or investigation into the initial investigation, the indictment and the trial of the IRP6," concludes Thurman.

The case of IRP Solutions (IRP6) is currently under appeal (US District Court for the District of Colorado, Honorable Christine M. Arguello, D. Ct. No. 1:09-CR-00266-CMA; Case Nos: NO. 11-1487, Case Nos. 11-1488, 11-1489, 11-1490, 11-1491 and 11-1492). Appellate Court panel includes the Honorable Senior Judge Bobby R. Baldock, Honorable Judge Harris L. Hartz, and Honorable Judge Jerome A. Holmes.

For more information about the story of the IRP6 or for copies of the legal filings go to

Related press releases:!press-release/c21pq

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