Appellant Attorney Gwendolyn Solomon Disagrees with Ruling Against IRP6 on Issues of 200 Pages of Transcript Being Withheld and Fifth Amendment Right

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Amid over 200 pages of court transcript being omitted by the district court, the Tenth Circuit Court of Appeals ruled against the IRP6. Advocacy group, A Just Cause, reviews and asks why?

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Appellant Attorney Gwendolyn Solomon questions how the Tenth Circuit Court of Appeals could rule against six IT executives (IRP6) in Colorado amid the lower court’s admission that over 200 pages of transcript are unaccounted for, which includes court dialogue where the defendants state that their Fifth Amendment was violated. (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).

Court records from the appeal of the IRP6 show that the IRP6 argued that their Fifth Amendment was violated and that the transcript to substantiate the violation is missing. Referencing the district court’s position regarding the missing transcript, the opinion from the Tenth Circuit Court of Appeals states, “…[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)

“Obviously the IRP6 are not satisfied with the court of appeals ruling especially surrounding the transcript issue,” says Gwendolyn Solomon, Appellant Attorney for the IRP6. “We believe that the lower court records show that there is something in the unedited records that is not included in the edited record, and that is what's concerning because the court of appeals did not correct this error,” argues Solomon.

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).

In a previous statement regarding the IRP6 case, the Honorable Judge H. Lee Sarokin wrote in The Huffington Post, “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.” (

“As A Just Cause continues to review all aspects of this case, it’s disturbing to see so much evidence ignored on this matter," states Sam Thurman, A Just Cause. “The court of appeals brought up the civil suit that A Just Cause filed regarding the 200 pages of transcript, and even in the ruling in the civil case there is admission that the transcript is not available," Thurman adds. “In that civil action, court documents show that Judge R. Brooke Jackson stated, ‘…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).

The appellate court decision states, “…[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 nothing relevant in the transcript to be considered still leaves room for argument, especially when the judge is on record in the previous proceedings stating that something is omitted," claims Thurman. “On more that one occasion representatives of A Just Cause have gone to the federal court house to review trial records, and despite the court saying that a complete unedited version is available, we have not yet had the opportunity to review such a document,” states Thurman.

“What compounds this issue is how the appellate court’s opinion seems to use a play on words with the 200 pages of transcript,” says Thurman. “You will see words like ‘missing’, ‘destroyed’, ‘not transcribed’, ‘unavailable’, ‘unedited transcript’, ‘final official version’, etc (D.C.No. 1:09-CR-00266-CMA, Appellate Case: 11-1492, Document: 01019289332, 8/4/14). The bottom line is if something was said to make the IRP6 take the witness stand and that part of the transcript just happens to not be available, doesn’t due process demand that the appellate court reverse the lower court’s decision,” questions Thurman. “Rather than addressing the huge white elephant in the room (the missing transcript), the court of appeals states that Mr. Barnes (IRP6) ‘voluntarily’ took the witness stand therefore their Fifth Amendment was 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 that it was voluntary or coerced especially if, as Judge Jackson wrote in the civil suit, ‘something was said [by Judge Arguello] that does not appear in the transcript (Case 1:13-cv-02260-RBJ Document 39 Filed 05/09/14 USDC Colorado, Page 8),” Thurman concludes.

A Just Cause continues to work with Appellant Attorney Gwendolyn Solomon in reviewing options in this case. A Just Cause is still requesting that Attorney General Eric Holder and the Judiciary Committees review how this case was handled.

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

Related press releases:!press-release/c21pq

Petition for release of 200 pages of transcript:

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