Appellant Attorney Gwendolyn Solomon Uncovers Verbatim Opinion from Completely Different Four Year Old Case in Ruling Against IRP6
Denver, CO (PRWEB) August 12, 2014 -- Advocacy group, A Just Cause announces a new discovery which they say adds fuel to the request that the federal government launch a full investigation into the handling of the IRP6 case in which the Tenth Circuit Court of Appeals recently affirmed the district court’s conviction (D.C. No. 1:09-CR-00266-CMA, Appellate Case: 11-1492, Document: 01019289332, 8/4/14).
The IRP6 case concerns a Colorado-based company (IRP Solutions Corporation) 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).
“I question the ruling in this case for several reasons," says IRP6 Appellant Attorney Gwendolyn Solomon. “How can the appellate court rule in a case where the district court judge is on the record stating that over 200 pages are missing from the transcript," asks Solomon. In a related civil action regarding the missing transcript, court documents state, “…there is no dispute that something was said that does not appear in the transcript. Judge Arguello addressed the incompleteness of the transcript of the bench conference in a written order issued on June 28, 2012…[ECF No.753].” (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),'” adds Solomon. “Combine this with the fact that a majority of the court’s ruling regarding the Speedy Trial violation in the IRP6 case appears to be a cut and paste job from the Larson case (another case decided on by the Tenth Circuit) and it creates a very suspicious situation," exclaims Solomon. (IRP 6 Case - Appellate Case: 11-1492, Document: 01019289332, 8/4/14 and United States v. Paul Andrew Larson, No. 09-4172, 627 F.3d 1198 (10th Cir. 2010))
“At first glance the opinion in the IRP6 case looked strange and didn’t read right; it didn’t flow," says Ethel Lopez, A Just Cause. “After looking at the IRP6 case next to the Larson case, A Just Cause concurs with Attorney Solomon in that it looks like its been cut and pasted, with the only difference being the court granted Larson’s appeal but rejected the IRP6. That’s not justice," proclaims Lopez. (IRP 6 Case - Appellate Case: 11-1492, Document: 01019289332, 8/4/14 and United States v. Paul Andrew Larson, No. 09-4172, 627 F.3d 1198 (10th Cir. 2010))
“The calculations are clear regarding the Speedy Trial violation in this case," argues Solomon. “There are 48 days that were unaccounted for that neither the defense nor the prosecution requested. A review of the calculations will show that this is an egregious violation of the Speedy Trial Act," adds Solomon. (IRP 6 Case - Appellate Case: 11-1492, Document: 01019289332, 8/4/14)
Regarding the IRP6 Speedy Trial violation assertion, the opinion by the Tenth Circuit Court of Appeals states, “At best, Defendants [IRP6] have demonstrated only one factor, the first, that weighs in favor of finding a violation of their constitutional right to a speedy trial. All other factors weigh against them. Accordingly, the balancing of the four factors establishes that Defendants’ Sixth Amendment right to a speedy trial was not violated.” (IRP 6 Case - Appellate Case: 11-1492, Document: 01019289332, 8/4/14).
Court records show that in the appellate case of United States v. Paul Andrew Larson, the opinion by the Tenth Circuit Court of Appeals states, “In summary, Barker's first factor weighs in favor of Mr. Larson's claim of a Sixth Amendment violation, while the remaining factors weigh against Mr. Larson. Absent extraordinary circumstances, Barker counsels us not to find a violation of the right to a speedy trial when the defendant's actions indicate he had no desire for a speedy trial. Moreover, while prejudice is not essential to a violation, this court is reluctan[t] to find a speedy trial deprivation where there is no prejudice. Accordingly, upon balancing the four Barker factors, we conclude that Mr. Larson's Sixth Amendment speedy trial right was not violated.” (United States v. Paul Andrew Larson, No. 09-4172, 627 F.3d 1198 (10th Cir. 2010)).
The opinion in the Larson case further states, “…[a]n indictment must be dismissed if the Speedy Trial Act is violated, but this dismissal may be with or without prejudice. A " violation of the speedy trial requirement, by itself, is not a sufficient basis for dismissal with prejudice. Dismissals with prejudice should be reserved for more egregious violations of the Speedy Trial Act. For the reasons set forth above, we REVERSE the district court's denial of Mr. Larson's motion to dismiss for violating the Speedy Trial Act, AFFIRM the district court's denial of Mr. Larson's Sixth Amendment speedy trial right claim, and REMAND this action for the district court to determine whether the indictment should be dismissed with or without prejudice. Because we reverse and remand for a violation of the Speedy Trial Act, we need not and do not address Mr. Larson's remaining claims.” (United States v. Paul Andrew Larson, No. 09-4172, 627 F.3d 1198 (10th Cir. 2010))
“How can the same federal court of appeals review a case in 2010 and Reverse and Remand it back to the lower court, and four years later cite that same case in the IRP6 opinion, but make an opposite ruling," asks Sam Thurman, A Just Cause (IRP 6 Case - Appellate Case: 11-1492, Document: 01019289332, 8/4/14 and United States v. Paul Andrew Larson, No. 09-4172, 627 F.3d 1198 (10th Cir. 2010)). “Inconsistencies like this raises the question of where does balance and equality come into the picture in appellate decisions in the Tenth Circuit," ponders Thurman.
A Just Cause continues to inquire why the court documents in this case have not included a signature block for the judges. “No judge’s signature or signature block has been on the replies from the court and this raises questions," says Solomon. “I question why Clerk of the Court Elisabeth Shumaker’s signature block appears on all of the documents versus the panel of judges," questions Solomon. (D. Ct. No. 1:09-CR-00266-CMA)
“Following a recent incident of the bond pending appeal not being signed by a judge, one of Judge Holmes’ assistants informed me that all judges on the panel had to review and sign off on those types of motions," states Lopez. “Judge Holmes shows as the writing Judge, but there is no signature and that is a concern," Lopez continues. “In reviewing the IRP6 case, it’s ironic that you can put two cases next to each other citing a Speedy Trial violation and get two different rulings, yet both opinions were by the same judge, Judge Holmes," concludes Lopez. (IRP 6 Case - Appellate Case: 11-1492, Document: 01019289332, 8/4/14 and United States v. Paul Andrew Larson, No. 09-4172, 627 F.3d 1198 (10th Cir. 2010))
“I am working to get the IRP6 cleared but some of the questions that have been raised throughout this case warrant serious consideration for review by the judiciary," concludes Solomon.
Court records for the IRP6 case show that the appellate court three-judge panel for the IRP6 case included the 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).
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/#!press-release/c21pq
Petition for release of 200 pages of transcript: http://www.change.org/petitions/attorney-general-eric-holder-investigate-federal-case-of-irp6-200-pages-of-court-transcript-missing
AJC Communications Director, A Just Cause, +1 7192715854, [email protected]
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