SOURCE: A Just Cause

A Just Cause

October 20, 2015 11:32 ET

Denver US Attorney Matthew Kirsch and FBI Agent John Smith Defy Court Order, Refusing to Return Property Seized in FBI Raid of IRP Solutions Over Ten Years Ago, Says Advocacy Group, A Just Cause

A Just Cause Urges an Investigation Into the Violation of the Court Order to Return Property, Illegal Search and Seizure and the Many Unanswered Questions of the IRP6 Case

DENVER, CO--(Marketwired - October 20, 2015) - On Monday, October 19, 2015, representatives from A Just Cause (AJC) accompanied Attorney Gwendolyn Lawson to claim the property seized during the FBI raid at IRP Solutions Corporation in February 2005. After the raid, false charges of mail and wire fraud were brought against the six executives of IRP Solutions, 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).

Gwendolyn Lawson, attorney for five of the six members of the IRP6, filed a motion in the court for the return of the seized property. The government’s response, dated August 13, 2015, states, “United States v. Rodriquez-Aguirre, 264 F.3d.1195, 1212-13 (10th Cir. 2001) (noting that seized property generally should be returned after criminal proceedings have terminated)… The government would be willing to return the remaining items before October 7, 2015, upon receipt from each Defendant, including non-moving Defendant Gary Walker, of a signed, knowing, and voluntary waiver of his right to bring any collateral attack pursuant to § 2255. The government will return the remaining property still in its custody and to which the Defendants are entitled as soon as it has assurances that none of the six Defendants can or will collaterally attack their convictions".

The court followed with an order dated August 17, 2015, which stated, “…The Government also notes, that it is willing to return the property sooner than October 7, 2015, upon receipt from each Defendant, including non-moving Defendant Gary Walker, of a signed, knowing, and voluntary waiver of his right to collaterally attack his conviction.”

Attorney Lawson states, “None of my clients, Banks, Barnes, Harper, Stewart and Zirpolo, have filed any collateral attacks and the need for waivers is moot. The property was supposed to be returned in accordance with the court order issued on August 17, 2015. The government has been informed that it is now in violation of the court's order as the government has not returned the remaining property to date of which my clients are entitled and under the governments assurance that it would be returned and available for pick up prior to October 7, 2015 since my clients have filed no collateral attack on their convictions,” remarks Lawson.

Attorney Lawson points to Federal Rule of Criminal Procedure Rule 41(g), which provides that “A person aggrieved by a lawful or unlawful search and seizure of property or by the deprivation of property may move for the property's return. Fed. R. Crim. P. 41(g). The rule requires that to show entitlement to relief, (1) the moving party is entitled to lawful possession of the seized property; (2) the property is not contraband; and (3) either the seizure was illegal or the government's need for the property as evidence has ended." United States v. Chambers, 192 F.3d 374, 377 (3d Cir. 1999). A claimant seeking recovery of property through a Rule 41(g) proceeding must only prove a "right to lawful possession of the property and an equitable right to its return, and no presumptions exist in favor of the government." U.S. v. Clymore, 245 F.3d 1195, 1201 (U.S. Court of Appeals for the 10th Circuit 2001). "Bare possession is enough to establish some form of interest." See Northern Pacific Railroad Co. v. Lewis, 162 U.S. 366, 369 (1896).”

“I arrived at the Federal Bureau of Investigation's (FBI) office to pick up the property on October 19, 2015 and FBI Agent John W. Smith said the property was not all at the Colorado Springs location and not ready for pick up as the government indicated that it would be if my clients signed a waiver. The government claimed, and the warrant notes, that the items to be seized were financials records. The government seized items illegally outside the scope of the warrant, particularly, patented information that had nothing to do with financial records, personal property and other non-financial documents,” concludes Lawson.

“The US Attorney overstepped the bounds of the warrant in this case, which explicitly stated financial records were to be seized; instead, the FBI agents confiscated personal items of people who worked in the building, engineering notes as part of IRP Solutions Corporation’s intellectual property, and many other items clearly indicating illegal search and seizure in violation of the Fourth Amendment has taken place,” states Cliff Stewart, an executive of A Just Cause.

“The Fourth Amendment provides safeguards to individuals during searches and detentions, and prevents unlawfully seized items from being used as evidence in criminal cases…When law enforcement officers violate an individual's constitutional rights under the Fourth Amendment, and a search or seizure is deemed unlawful, any evidence derived from that search or seizure will almost certainly be kept out of any criminal case against the person whose rights were violated” (http://criminal.findlaw.com/criminal-rights/search-and-seizure-and-the-fourth-amendment.html#sthash.846w0zqF.dpuf).

“This is yet another example of underhanded tactics on the part of the government and A Just Cause firmly believes there is an attempt to cover up the fact that the evidence seized and used to build a case against the IRP6 violated their Fourth Amendment rights,” adds Stewart.

“From the start, much of the ‘evidence’ in the IRP6 case should have been thrown out due to Fourth Amendment rights violation, but now to wrangle with AUSA Kirsch and FBI Agent John Smith about the whereabouts of property that should have been returned a long time ago -- just makes you wonder what the government has to hide. Why are we getting the run around?” questions Stewart.

“If the property seized in the raid should have been returned in 2014 after the IRP6 appeal concluded, this is long overdue. It is now well past October 7th. The property should have been available for pickup over a week ago,” declared Lamont Banks, Executive Director of A Just Cause. “This latest stunt by AUSA Kirsch only adds to the list of many things at issue in the IRP6 case. The Appellate Court glossed over the key issues: upholding the lower court’s decision and refusing to address the missing transcripts which would have substantiated a violation of the IRP6’s Fifth Amendment rights, the fact that expert witnesses were not permitted to testify and a Speedy Trial Violation occurred without any inquiry to name a few,” states Banks. “The court and government have proved to be corrupt beyond words and the system failed the IRP6,” laments Banks.

This position is upheld by the position of Retired Federal Judge H. Lee Sarokin, who has lent his voice in strong and persuasive support of the IRP6. The Honorable Judge H. Lee Sarokin authored a five-part series on the Huffington Post, where he outlined, ‘The Case of the Missing Transcript’. Judge Sarokin also released an email letter of support to A Just Cause arguing that the IRP6 were wrongly convicted. In it he notes, “When one commenced testifying and another objected, the judge denied giving any such instruction (that one of them had to testify). The defendants demanded that the transcript of the judge's statement be furnished. The trial continued; the defendants were convicted and sentenced to 7 to 11 years; the convictions were affirmed and review denied by the Supreme Court. To this day the transcript of that conversation has never been provided."

According to Judge Sarokin's assertion, "Although the primary charge was that the defendants had misrepresented their success and prospects to certain staffing companies, the case was presented to the jury on the basis that the software program developed by the defendants was a phony and a scam. The defendants had formed a software company to develop a program to aid law enforcement in sharing information. They worked for years on the project, spent their time and money, entered into a substantial lease, hired former law enforcement personnel to work on the project, engaged law firms and travelled the country demonstrating the program to potential customers such as Homeland Security, the FBI, the N.Y. Police Department, etc. As interest increased, they engaged staffing companies to provide programmers. A former assistant U.S. Attorney sent a letter to the current U.S. Attorney claiming that these individuals had committed fraud -- had lied about their prospects to the staffing companies -- a claim consistently denied. Whom the letter writer represented was not disclosed," shared Sarokin.

Judge Sarokin's assessment, and court records show, an FBI raid was conducted on the IRP business office and everything seized. "The (raid) made it impossible for them to fulfill their obligations which they assert they had always intended to honor," writes Sarokin. "Thereafter, upon a complaint received from a staffing company, the head of the local FBI responded that it was a civil not a criminal matter and declined to investigate further. Nonetheless, the charges were later submitted to a grand jury which refused to indict. But someone (unbeknownst to the defendants) apparently persisted in having the matter submitted and another grand jury finally indicted -- some years after the first letter of complaint," adds Sarokin.

Judge Sarokin's review of court records show that at the trial, the government conceded that the defendants made no money as a result of the alleged scam. "It is difficult to reconcile the charge with the time and money devoted to the project by the defendants and the unanswerable questions: Why would scammers pick law enforcement as their target?" ponders Sarokin. "Why would they personally guarantee the obligations to the staffing companies? How could they possibly make any money unless the program were a success and contracts obtained? Who pushed so hard for the indictments?" ponders Sarokin.

Judge Sarokin has written extensively about the IRP case in a five-part Huffington Post series and he continues to review the question of sentencing. He states, "Finally there is the treatment of the defendants -- unusually long sentences -- denied bail pending appeal as flight risks," says Sarokin. "None (of the defendants) have any criminal records. They all belonged to the same church and lived in the same community. They and their families are replete with service in the armed forces and a long history of such service. They have families," adds Sarokin. "(In comparison) White executives who have supervised or directed conduct that has resulted in death of consumers and employees are not even charged, and yet these 5 African-Americans (and one white colleague) are pursued relentlessly and punished harshly for basically the failure to pay corporate debts," argues Sarokin.

"I became interested in this case as the result of a radio interview I was asked to do by A Just Cause in Colorado. I fear a grave injustice has been done, but all legal avenues have been exhausted,” concludes Sarokin.

To read Judge Sarokin's email/letter 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

Contact Information

  • A Just Cause
    (855) 529-4252 extension 710