Is Inconsistent Testimony Grounds for Further Review in IRP6 Case, Asks Advocacy Group A Just Cause

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IRP6 Requested Dismissal of Case Based on Impeachment of Government Witnesses

Free The IRP6

“If you tell the truth, you don't have to remember anything.” ― Mark Twain

The IRP6 case concerns six executives of the IRP Solutions Corporation. IRP Solutions developed the Case Investigative Life Cycle criminal investigations software for federal, state and local law enforcement (D. Ct. No. 1:09-CR-00266-CMA). The IRP6 (Kendrick Barnes, David A. Banks, Gary L. Walker, Clinton A. Stewart, Demetrius K. Harper and David A. Zirpolo) were convicted in a 2011 criminal case (Case no. 09-CR-00266-CMA) in the United States District Court, District of Colorado on mail and wire fraud charges. The IRP6 have been imprisoned at a federal prison camp in Florence Colorado for 27 months. Assistant United States Attorney Matthew T. Kirsch prosecuted the case and Judge Christine M. Arguello was the presiding judge.

The government alleged that the IRP6 defendants made false statements to staffing company representatives about having a government contract, which induced them into providing staffing services. The indictment states: "Defendants Banks, Harper, Walker, Stewart and Zirpolo induced the staffing companies to enter these arrangements by making false representations" about having "current or impending contracts with one or more large government agencies, including the Department of Homeland Security." (D. Ct. No. 1:09-CR-00266-CMA)

According to case law, the government must prove not only were false statements made, but that those statements were material, meaning that they must be capable of influencing the person to whom they were made. In Neder v. United States, 527 U.S. 1 (1999), the Supreme Court of the United States (SCOTUS) held that to establish guilt under the mail and wire fraud statutes, the government must prove that false statements are material. The Tenth Circuit Court of appeals echoed SCOTUS' findings, expounding in United States v. Lawrence, 405 F.3d 888, 889 (10th Cir. 2005), that a statement is material "if it has the natural tendency to influence, or is capable of influencing, the decision or action" of the person on entity to whom it is addressed.

“The question of how IRP represented their business in the market place sits at the core of this case," says Sam Thurman, A Just Cause. “In a securities fraud case that Judge Arguello presided over (Delta Petroleum, Darwin v. Taylor et al., case number 1:12-cv-01038, and the consolidated case is Nakkhumpun v. Taylor et al., case number 1:12-cv-01521) the judge was faced with ruling on how that company represented itself to potential investors. Records show that Judge Arguello commented, "A corporation’s self-praise about its business strategy plays no serious role in market participants’ evaluation of potential investments. Reasonable investors do not normally rely on vague, optimistic statements in making investment decisions” (http://www.law360.com/articles/477411/delta-petroleum-execs-shake-securities-fraud-class-action). “One questions how a judge could sentence the IRP6 to federal prison for terms of 7 to 11 years for being positive about their business strategy, but then dismisses a case a couple of years later involving hundreds of millions of dollars citing that ‘self-praise…plays no role in’ someone doing business with you," ponders Thurman.

Court records show that the IRP6 represented themselves Pro Se during the court proceedings. “The transcript from the trial shows that on cross-examination, an overwhelming majority of the government witnesses admitted that they were not personally responsible or even involved in making the decision to do business with IRP Solutions," states Banks (D. Ct. No. 1:09-CR-00266-CMA). “They repeatedly testified that their credit departments independently made the decision based on customary review of Dun & Bradstreet credit reports and other reference checks on the company. Court records show that the Dun & Bradstreet reports pulled by the staffing companies identified IRP Solutions as a high credit risk," adds Banks (D. Ct. No. 1:09-CR-00266-CMA).

Court Transcripts reflect that on Day 3 of trial, when Kathryn Losey-Miller of AppleOne staffing was asked whether a credit check is "determinative" of whether or not (AppleOne) engages in business or doesn't engage in business with a client, she answered "Right Uh-huh." On Day 4 of trial, Assistant United States Attorney Matthew Kirsch asked Valerie Cherry of Analysts International, whether statements about the IRP Solutions relationship with New York Police Department were considered when "deciding whether or not Analysts International should do business...", Cherry responded, "Yes." However, on cross-examination, Cherry was asked to "describe your process that you go through when you entertain a new client that calls your company?" Cherry responded "We run a Dun & Bradstreet on them. And then, based off of that, assign a certain dollar amount as to what we would agree to service with them." Also on Day 4, under direct examination conducted by AUSA Kirsch, Karen Chavez of Today's Staffing testified that she met Harper and Stewart at a restaurant to discuss payrolling services. Chavez testified that Harper told her, "He started his company about 3 years prior...and that his clients were state and government agencies." Chavez never stated that Harper or Stewart mentioned anything about a current or impending contract, yet Kirsch asked, "Based on your understanding from Mr. Harper, what Mr. Harper was saying, did you believe these contracts were already in place?" Chavez responded, "Yes". Chavez went on to say she didn't personally make the decision to enter into a contract to provide payrolling services, but she "had to run it up the ladder" and that senior company executives "felt it was a decent risk,". Banks questioned Chavez on cross-examination: "Did [Harper] mention any contracts he had in place with any law enforcement agencies?" Chavez responded, "He just said he had been in business for three years and his clients were city and state governments." Banks further asked if it is "a requirement of [Today's Staffing] to engage in business prior to receiving approved credit back from the credit department?" Chavez responded, "Yes, sometimes. If they had a high credit rating from a Dun & Bradstreet credit rating." (D. Ct. No. 1:09-CR-00266-CMA)

Dr. Alan Bean, Executive Director, Friends of Justice, after conducting a six month investigation into the IRP6 case, released a report titled "Money For Nothing: how racial bias destroyed six lives, stymied a black-owned business and outraged and entire congregation." In the report, Bean said that the government case was built on a "bogus business theory." Bean stated: "The trial followed a mind-numbingly predicable pattern. Staffing witnesses would tell Kirsch they had been assured that IRP had signed contracts with law enforcement agencies. The [IRP6] would produce email correspondence in which IRP representatives celebrated the promise of their software while making it perfectly clear that no contracts had been signed with the government." "Why did the U.S. Attorney's Office criminalize a debt-collection case. The only justification is the bogus business theory: The IRP case departs from the typical failed-scam scenario for the simplest of reasons: the government's case can't stand up to scrutiny. The fraud alleged in the indictment is a mirage", Bean added.

Two months before trial, Andrew Albarelle, Principal Executive Officer with the Remy Corporation, a Denver-based staffing company, wrote a letter to U.S. Attorney John Walsh explaining how staffing companies actually work. "In our due diligence of companies," he explained, "we have found the term contract has little-to-no bearing on whether we engage with that company or not. We base our decision to engage with a company on its creditworthiness, cash flow or the product they are developing," Albarelle wrote. "The implication of Albarelle's argument was obvious," says Bean. "Since IRP possessed no meaningful cash flow and couldn't pass a creditworthiness test, the business decision of the staffing companies must have been driven by the future promise of IRP's CILC software," Bean stated in his report.

"One could certainly make a strong argument from trial records, which includes the letter from staffing industry expert Andrew Albarelle, that prosecution staffing company witnesses provided inconsistent testimony when they represented that the IRP6 allegedly made statements about government contracts that induced them to do business with IRP Solutions," says Thurman. “Based on a review of the records and contract disclaimers in this case, verbal statements, whether true or false, could not bind or influence a company to do business, but rather credit checks and an assessment of creditworthiness. Therefore, in accordance with SCOTUS and 10th Circuit precedent, one must question if the government met the burden of establishing guilt in the IRP6 case based on the materiality requirement. One must also question if the jury was misled by inconsistent prosecution witness testimony that could potentially fall under the definition of subornation of perjury, which should provide a basis for further review of this case," argues Thurman.

In the 1935 case of Mooney v. Holohan, SCOTUS held that "if a (prosecutor) has contrived a conviction through the pretense of a trial in which truth is but used as a means of depriving a defendant of liberty through deliberate deception of court and jury by presentation of testimony known to be perjured. Such contrivance by a (prosecutor) to procure the conviction and imprisonment of a defendant is as inconsistent with the rudimentary demands of justice as is the obtaining of a likely result by intimidation. SCOTUS, in the 1972 case of Giglio v. United States, held that a prosecution's knowing solicitation of, or failure to correct perjured testimony, violates the defendant's due process rights and will be grounds for a new trial if the false testimony could in any reasonable likelihood have affected the judgment of the jury."

AJC has made and continues to make repeated calls to the Attorney General Eric Holder to conduct a criminal civil rights investigation into whether U.S. Attorney John Walsh and Assistant United States Attorney Matthew Kirsch intentionally violated the IRP6's civil rights. AJC is also calling the DOJ and Congress to investigate if Kirsch violated ethics rules by failing to correct false statements of its witnesses and for suborning perjury. According to the American Bar Association Model Rules of Professional Conduct, Rule 3.3(a), "A lawyer shall not knowingly...make a false statement of fact or law to a tribunal or fail to correct a false statement of material fact or law made to the tribunal by the lawyer." Rule 3.8, Special Responsibilities of a Prosecutor, provides that: "When a prosecutor knows of clear and convincing evidence establishing that a defendant in the prosecutor's jurisdiction was convicted of an offense that the defendant did not commit, the prosecutor shall seek to remedy the conviction." Criminal statute 18 U.S.C. 1622 states: "whoever procures another to commit any perjury is guilty of subornation of perjury." The 10th Circuit, in the case of U.S. v. Singleton, 165 F.3d 1297 (10th Cir. 1999) held that "the subornation of perjury statute applies to 'whoever,' and makes no exceptions for federal prosecutors."

"Court records don't show AUSA Kirsch trying to correct any testimony of its staffing witnesses and we (IRP6) feel a DOJ or congressional investigation is warranted," asserts Banks. "We know we are innocent and something needs to be done to correct this gross injustice. The IRP6 asks Eric Holder to intervene with a civil rights investigation in the same way he has done with the Michael Brown shooting in Ferguson, Missouri. It is not right for us and our family to continue suffer for a crime we never committed. The courts have failed us," concludes Banks.

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Sam Thurman
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