SOURCE: A Just Cause

A Just Cause

August 26, 2015 08:00 ET

National Advocates for Justice Question Probable Cause in IRP6 Wrongful Conviction Case

Legal Professionals Agree That There Was No Probable Cause to Investigate and Prosecute the IRP6

DENVER, CO--(Marketwired - August 26, 2015) - Justice advocacy group, A Just Cause, continues to seek intervention from the Obama Administration, the Department of Justice and the House and Senate Judiciary Committees in the 2011 wrongful conviction of six IT executives known as the IRP6.

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 business was raided in February 2005 based on accusations of wrongdoing. A Just Cause argues that the IRP6 (Kendrick Barnes, Gary L Walker, Demetrius K. Harper, Clinton A Stewart, David A Zirpolo and David A Banks) were wrongly convicted in 2011 after being accused of mail and wire fraud. (D. Ct. No. 1:09-CR-00266-CMA).

"A Just Cause has been fighting for the IRP6 for over 3 years seeking their exoneration," says Sam Thurman, A Just Cause. "As one considers the evidence and how the case unfolded, everything points to a wrongful conviction."

"As A Just Cause reviews the analysis and comments made by multiple legal professionals who have reviewed the IRP6 case, the end result is the same; the IRP6 are six executives who should not be in prison," says Lamont Banks, A Just Cause Executive Director. "We have had folks review this case from front to back including the search warrant, discovery, the theory of the prosecution, and the court proceedings. Everyone comes to the same conclusion -- this should have never happened," adds Banks.

"When you look at the IRP6 case the question of 'probable cause' and 'intent' comes into play," asserts Thurman. "First and foremost, there was no probable cause for the FBI to raid the offices of IRP Solutions back in 2005," Thurman adds.

Court records show that FBI Special Agent John W. Smith obtained an Affidavit for Search Warrant and Seizure on February 7, 2005 stating that IRP was a "purported" software development company and that it was a front set up to "scam" staffing companies.

"The problem with Agent Smith's warrant is that it was bogus right from the start," says Cliff Stewart, A Just Cause. "Court records show where Smith obtained sworn affidavits from retired federal agents who worked at IRP Solutions as consultants stating that IRP was a legitimate company, developing viable software for local state and federal law enforcement agencies. One of the retired agents was Gary Hillberry, who affirmed that IRP was working on law enforcement software and that the company had legitimate customers. So without looking at anything else, for Agent Smith to get Judge Shaffer to sign off on a warrant when he knew that there was no wrongdoing is in and of itself a violation of the law and a gross waste of government resources and taxpayer dollars," concludes Stewart.

"For any agency to move forward in an investigation or an arrest, there must be 'probable cause,'" argues Thurman. "And the lack of probable cause was ignored in this case."

Probable cause is a requirement found in the Fourth Amendment that must usually be met before police make an arrest, conduct a search, or receive a warrant. Courts usually find probable cause when there is a reasonable basis for believing that a crime may have been committed (for an arrest) or when evidence of the crime is present in the place to be searched (for a search). (https://www.law.cornell.edu/wex/probable_cause)

In Illinois v. Gates, the Court favored a flexible approach, viewing probable cause as a "practical, non-technical" standard that calls upon the "factual and practical considerations of everyday life on which reasonable and prudent men [...] act." (https://www.law.cornell.edu/wex/probable_cause)

"Taking the court's view on 'probable cause', 'reasonable and prudent men' can look at the IRP6 case and see that there was no wrongdoing and the IRP6 should not have been investigated and there should have never been a trial," says Thurman. "In addition to what the courts and the constitution say about 'probable cause,' even the FBI supposedly has strict guidelines for executing warrants and searches, but that didn't seem to matter in the IRP6 case," adds Thurman.

According to the FBI, "The FBI's collection authorities are also controlled by the federal courts. Under the USA PATRIOT Act, a federal judge must still approve search warrants and wiretaps for counterintelligence and counterterrorism investigations. Agents must still prove probable cause in order to obtain a warrant authorizing searches and wiretaps. The FBI only collects and disseminates intelligence under guidelines designed specifically to protect the privacy of U.S. citizens, and we are committed to using our authorities and resources responsibly." (https://www.fbi.gov/about-us/intelligence/liberties)

"There is far too much evidence in the IRP6 case to support their innocence, so why are they incarcerated?" ponders Banks. "If you examine just a few points raised by other professionals, it becomes clear that this is a case of wrongful conviction," concludes Banks.

In January 2005, Gary Hillberry, a retired thirty-year veteran of Immigration and Customs Enforcement who was hired to work as an independent contractor providing subject matter expertise at IRP Solutions, sent FBI Agent John Smith a letter stating: "We decided that IRP Solutions had a viable law enforcement product and appeared to be moving forward to acquire state and federal law enforcement contracts for their product." Court documents also show that Hillberry and two other retired FBI agents, John Epke and Dwayne Fuselier, signed independent contractor agreements to be paid upon the sale of IRP's software. (D. Ct. No. 1:09-CR-00266-CMA).

In 2013, Dr. Alan Bean, Executive Director of Friends of Justice, conducted a six month investigation into the IRP6 case and after reviewing the allegations and evidence, Bean released a report titled "Money for Nothing: how racial bias destroyed six lives, stymied a Black owned business and outraged an entire congregation." In the report, Bean characterized the government's "contract theory" as "Bogus," stated that "the government's case can't stand up to scrutiny," and said, "the fraud alleged in the federal indictment is a mirage." (https://friendsofjustice.wordpress.com/free-the-irp6/)

Court records show that the government empanelled two grand juries to get an indictment against the IRP6. The 2007 grand jury determined that it was a corporate debt collection case and that no wrongdoing had occurred. "The government used a second grand jury when the first grand jury recognized that debt was not a crime and refused to indict the IRP6," affirms Banks. "A highlight of the first grand jury was a question asked by one of the grand jurors: "But if I don't pay somebody for work they've done, that's not a federal crime," one grand juror pointed out. "The government changed the approach, withheld information critical to determining 'probable cause,' empaneled a second grand jury and got the indictment," says Banks.

During a January 2014 interview on A Just Cause (AJC) Radio, staffing industry expert Andrew Albarelle (Principal Executive Officer, REMY Corporation) shared his expert opinion about the IRP6 case. Court records show that Mr. Albarelle had nearly 20 years experience in the staffing industry at the time of the case and had participated in other government investigations to expose fraud in the staffing industry (Ct. No. 1:09-CR-00266-CMA, Oct 6, 2011, and Albarelle Letter to U.S. Attorney John Walsh, July 18, 2011). "There is no difference in what IRP did (normal business practices) than other companies when it comes to debt," asserts Albarelle during the January 2014 radio interview. Court records further show that Mr. Albarelle was not allowed to testify during the October 2011 trial of the IRP6.

"Although the primary charge was that the [IRP6] 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," says Judge H. Lee Sarokin, retired Federal District and Appellate Judge. "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 [Greg Goldberg] sent a letter to the current U.S. Attorney claiming that these individuals had committed fraud -- had lied about their prospects to staffing companies -- a claim consistently denied. Whom the letter writer represented was not disclosed," shared Judge Sarokin.

"It is difficult to reconcile the charge with the time and money devoted to the project by the [IRP6] defendants and the unanswerable questions: Why would scammers pick law enforcement as their target?" Judge Sarokin questions, and "why would they personally guarantee the obligations to staffing companies? How could they possibly make any money unless the [CILC software] were a success and contracts obtained? Who pushed so hard for the indictments?" Judge Sarokin ruminates.

"Another key point to note is that during the trial the IRP6 impeached several government witnesses, yet the jury was never instructed by Judge Arguello as to the meaning of impeachment," argues Stewart. (D. Ct. No. 1:09-CR-00266-CMA). Impeachment may refer to different legal concepts. One meaning in the law refers to discrediting a witness by showing that he or she is not telling the truth or does not have a reliable basis for their testimony. (http://definitions.uslegal.com/i/impeachment/).

“In addition to the jury not being informed on the ramifications of witness impeachment, the IRP6 were not allowed to demonstrate for the jury the unreliable testimony of other government witnesses like Eileen Bergman who tried to discredit IRP Solutions to NYPD; an attempt that was unsuccessful by Bergman,” adds Stewart.

Prior to the IRP6 going on trial, IRP Solutions software (Case Investigative Lifecycle software) was reviewed/examined by Don Vilfer of Califorensics in 2010. Califorensics is a computer forensics firm. Mr. Vilfer is retired FBI, Supervisory Special Agent for the White Collar Crime and Computer Crime Squad. Mr. Vilfer is also a Certified Fraud Examiner and an Attorney. Califorensics reported: "The CILC software did not appear to be 'vaporware' but included a large amount of complex coding that would have required significant development (software development). The CILC software was functional at the time of the search warrant (making reference to the February 2005 raid on the IRP Solutions offices). The software contained many notable features, making it a functional product for the intended consumer. There is a market for the functionality that CILC software offers and it (CILC) would undoubtedly be of interest to many law enforcement agencies."

"Countless professionals have looked at the IRP software and spoke of its functionality and viability to law enforcement," says Thurman. "Others have viewed the IRP6 case and are amazed at how this case got this far. And then there were numerous articles in professional law enforcement trade publications that spoke highly of IRP and the Case Investigative Lifecycle software (CILC). Business engagements by IRP executives included, but are not limited to the FBI, the Department of Homeland Security (FICMS Program), The Federal BOP, Rocky Mountain HIDTA, DOJ Chief Information Officer Van Hitch, Colorado Bureau of Investigation (Agent Colin Reese), Philadelphia PD/Office of Inspector General, Royal Bahamas Police Force (Commissioner Ellison Edroy Greenslade), National Police of Colombia (Major Monica Briceno), Trinidad and Tobago Police Service (now retired Commander of Police Reserves, Lyle Alexander) and many other small, medium and large agencies. The list of publications and references includes, but is not limited to Law Enforcement Technology Magazine, Police Magazine, Criminal Investigation textbook by Bennett and Hess, letter of reference by Colorado Springs former City Manager Lorne Kramer, letter of reference by Canon City Chief of Police Daniel Shull, reference by former NYPD Officer and part of technology team John Shannon and the IRP executives met with lawmakers like former Senator Ben Nighthorse Campbell (who encouraged the men to pursue support from federal agencies)," Thurman recalls.

"With this level of activity, one has to ask several questions," Thurman ponders. "How could a search warrant be executed when there was no proof of wrongdoing -- in fact there was proof from retired agents to support the legitimacy of IRP Solutions and its executives? Why didn't the judge verify that there was probable cause -- or do judges just sign off on warrants without asking questions? Why was the company raided -- the company had debt, which is not a crime? Why did the FBI claim IRP as a 'purported' software development company when there was absolute proof to the contrary? Why were there two grand juries? Why wasn't expert witness testimony allowed? Why did the government change their theory from 'a purported software development company,' to 'money laundering,' to 'scamming staffing companies?'" These questions are only the tip of the iceberg when you look at the IRP6 case and ponder 'How did this happen,' 'How could this happen?'", asks Thurman.

"A Just Cause is seeking justice in the case of the IRP6," asserts Banks. "This type of travesty should not have occurred and that's why we are seeking the exoneration of the IRP6. Additionally, we are asking the Department of Justice to launch an investigation into the circumstances surrounding this case. The investigation should probe into the actions by the FBI (Agent John Smith), the U.S. Attorney's office (Assistant U.S. Attorney Matthew Kirsch) and the 10th Circuit (Judge Christine Arguello). This case is filled with anomalies and if they go unchecked, it will continue," Banks concludes.

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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