SOURCE: A Just Cause

A Just Cause

October 23, 2015 08:19 ET

A Just Cause Questions Why Judge Christine Arguello and Assistant U.S. Attorney Matthew Kirsch Fought So Intensely to Keep Intent out of the IRP6 Case

A Just Cause Contends That Clarifying Intent in Jury Instructions and Allowing Evidence About IRP6 Business and Software Product Would Have Resulted in a Not Guilty Verdict and Dismissal of the Case

DENVER, CO--(Marketwired - October 23, 2015) - A Just Cause (AJC) remains baffled by the injustices and inequities that occurred in the IRP6 case, particularly the fierce opposition of the court and the government on the issue of intent. The IRP6 argued to allow the jurors to consider intent -- to no avail. "We firmly believe that the decision in this case would have been vastly different had all of the IRP6 evidence, with respect to their business prospects, software product, and expert witnesses had been permitted. Judge Christine Arguello excluded so much of the evidence that she single-handedly debilitated the IRP6 defense and left them facing what turned out to be insurmountable odds in the eyes of the jury," states Lamont Banks, Executive Director of A Just Cause.

The IRP6 are six executives that worked at IRP Solutions Corporation, which was raided by the FBI in February 2005. After the raid, false charges of mail and wire fraud were brought against the six executives -- 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).

"It's important to understand the mission of IRP Solutions and the six men, known as the IRP6. They saw the gaping hole in America's national security in the wake of 9/11. Sadly, the safety and security situation in our nation is no better today. Organizations such as the Department of Homeland Security (DHS), Federal Bureau of Investigations (FBI), Central Intelligence Agency (CIA) and law enforcement agencies at all levels are far from having a viable solution to fight terrorism, or even share critical information in a way that stops criminal enterprises and terrorism, at home and abroad. Where programs like Sentinel and Virtual Case File fell short despite excessive government spending, IRP's Case Investigative Life Cycle (CILC©) software met the requirements and could easily be tailored to the needs of each agency," says Cliff Stewart, an executive of A Just Cause.

"What happened to the IRP6 was a clear case of overcriminalization," notes Stewart. The Heritage Foundation defines overcriminalization as "...the trend to use the criminal law rather than the civil law to solve every problem, to punish every mistake, and to compel compliance with regulatory objectives. Criminal law should be used only if a person intentionally flouts the law or engages in conduct that is morally blameworthy or dangerous." Records show that the federal government spent over $1 billion on what the government called failed efforts, namely Virtual Case File and Sentinel. The OIG released a scathing report revealing that functionality failed to meet requirements with substantial mismanagement of funds and considerable schedule overruns, resulting in no viable product options.

The CILC© software, on the other hand, was highly coveted and the executive team of IRP Solutions traveled for demos, began customization for DHS, New York Police Department (NYPD) and Philadelphia Police Department (PPD), and provided $100M quote for a single module to DHS in support of the Consolidated Enforcement Environment Initiative. They enlisted the help of former law enforcement personnel to tailor the product to their intended customers and an independent review of the software, by Don Vilfer of Califorensics, who had over twenty years of experience as an FBI analyst, reported, "The software (CILC) contained many notable features, making it a functional product for the intended consumer…The functionality that we observed in our review of the CILC software would undoubtedly be of interest to many law enforcement agencies." But none of this was presented to the jury, the government argued and Judge Arguello agreed to exclude it from the jury.

In a principal brief, Assistant U.S Attorney Matthew Kirsch openly states that, "The Government never denied that the software product was viable and requested that this critical point be omitted from the jury. Appellants and Banks had a legitimate business with a viable product." (Doc. 617, pp. 1889:19; Vol. II, pp. 2839-2842, Excerpt from the principal brief on page 7, Document: 01018936683 filed with the court). However, Kirsch repeatedly objected to the IRP6 elaborating on the software that the company developed, and asked not to share this information with the jury according to court records.

"This just opens up so many questions. Why did the warrant, signed off by the court, note IRP Solutions as a 'purported software company'? Why did Kirsch fight so hard to ensure few positive things about the business and the software were presented to the jury? If the government truly believed the IRP6 had a legitimate business with a viable product, why were charges of fraud brought against them? How do you have a scam if you have a product? This wasn't a hoax or vaporware, as Califorensics verified in their independent investigation," exclaims Stewart. "There was certainly more at play in this case and the government worked tirelessly to ensure nothing positive or in favor of the IRP6 made it to the jury, so that a win could be secured. It is truly a travesty of justice," concludes Stewart.

"Proving the legitimacy of our business was key to our defense," says David Banks, COO of IRP Solutions. "We were not allowed to show our involvement with agencies like the Philadelphia Police Department," Banks adds. "DHS representatives from Immigration and Customs Enforcement, Secret Service, Federal Air Marshals, and Border Patrol, as well as retired agents from the FBI, provided valuable subject matter expertise about federal investigative and intelligence operations to IRP Solutions. We incorporated this feedback into our product and even had retired federal agents working with us side-by-side," remarks Banks.

"I believe that if the jury fully understood IRP Solutions' business, they would have never convicted the IRP6, but Assistant U.S. Attorney Matthew Kirsch didn't want the jury to know about their business prospects," says Stewart. "This is a key point because the jury was not fully informed and it impeded judicial process in this case. The fact that the definition of intent and arguments in that vein were not permitted severely prejudiced this IRP6 jury," Stewart adds.

Court records show that Assistant U.S. Attorney Kirsch wrote in a motion, "Even if the Defendants could establish how evidence relating to events or information after February 2005 was relevant, any such evidence should be excluded based on Rule 403. Evidence of the capabilities and the status of the Defendants' software after February 2005, will only sidetrack the jury on issues which, at best, are tangentially related to the facts at issue," (Ct. No. 1:09-CR-00266-CMA, Government's Motion In Limine, Document 430, 8/25/11). "I think as this investigation unfolded, Kirsch realized that IRP Solutions had an extremely viable and marketable product, as well as the ability with a single sale, to repay all of its debt with money to spare. He not only sought to keep this out of the hands of the jury, he disrupted impending IRP business deals by telling prospective customers that an indictment was coming," notes Stewart.

Court records show that the defendants submitted a proffer showing where Philadelphia officials were informed by the Denver U.S. Attorney's office that IRP Solution would soon be indicted. Analysis of timelines reveals that it would be six months before the government presented the IRP Solutions case to a grand jury. "This was a deliberate effort on the part of the government to stop the close of sales by IRP Solutions. How can someone predict that an indictment is coming? This sort of interference prevented the IRP6 from generating revenue and paying their debts. As long as IRP Solutions was blocked from generating revenue, and not allowed to bring it up during the trial, the government had this case right where they wanted it," Stewart states.

David Banks, COO of IRP6, and his co-defendants argued vehemently to present the jury the definition of specific intent to no avail. He argued that although the jury instructions had references to specific intent to defraud, he wanted to further define 'specific intent' in laymen's terms for the jury. He asks Judge Arguello, "Is there any intention to further define 'specific intent'? I know that…conspiracy, mail fraud and wire fraud, are considered specific intent crimes. And obviously the underpinnings of our defense will be based on that specific intent. 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," states Banks. Judge Arguello responds, "All right. Thank you. The additional sentence that I just added to the end of this is as far as I am willing to go to further define specific intent. So your objection is noted for the record."

Multiple independent investigators have objectively looked into the IRP6 case and come away with the conclusion that the IRP6 had no intent to defraud. The Honorable H. Lee Sarokin, a retired federal appellate judge, is among those questioning the intent to defraud. In his five-part series on the Huffington Post, he notes, "The government's contention that their business was nothing but a scam defies reality… The government proved that the defendants incurred debts and did not pay them, but it failed to prove that they did not intend to pay them when incurred, because that was not their true intention." Dr. Alan Bean, Executive Director of Friends of Justice, conducted a six-month investigation into the IRP6 case and wrote, "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 federal indictments is a mirage. The bogus business theory is bogus."

"A Just Cause firmly believes in the innocence of the IRP6. These upstanding businessmen acted with integrity and had no intent to defraud. If Judge Arguello would have allowed all their evidence and provided a clear definition in the jury instructions of intent, A Just Cause firmly believes they would be home today. We will continue to expose the injustice that occurred in this case and fight for the release of the IRP6," vows Stewart.

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

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