When Federal Judicial and Prosecutorial Misconduct Meet

 

The conviction rate in U.S. federal courts currently stands at an incredible 99%, something akin to what one might expect to find in a third world banana republic or hardline authoritarian dictatorship.  While this statistical near certainty of conviction is patently illegitimate on its face, a lot of work is often required to assure that the generally pre-determined outcome is achieved.  Details like facts and the culpability of the accused are typically given short shrift in the process if they contradict the official, i.e. government, narrative.  

 

 

While this is unfortunately nothing new, a recently decided federal appeal sheds light on one of the more egregious examples of federal prosecutorial misconduct and judicial legal sophistry.  The process of what passes for justice in federal courts typically sees a variety of illicit tactics employed in order to maintain the near certainty of conviction.  These tactics include perjury, subornation of perjury, judicial cognitive dissonance, overcharging and other assorted varieties of judicial and prosecutorial misconduct.  One or more of these means are seen in most, if not all, federal trials, but rarely is there a case where so many of them are present in one matter.

 

In an era where outrageous results in federal court have become the norm, the case of the IRP 6 stands out as a stunning example of the federal criminal “justice” system run amuck.  IRP Solutions Corporation was a minority owned software firm in Colorado that specialized in developing computer programs beneficial to law enforcement agencies.  Like many small firms, IRP suffered from persistent cash flow problems and was behind on various bills, including those owed to temporary staffing companies.  

 

 The IRP defendants learned the hard way that justice is elusive in U.S. federal courts    

The government’s case against IRP flowed from these outstanding invoices.  What was essentially a simple collection matter was successfully transformed into a federal criminal case by overzealous prosecutors who appeared to have been driven by an agenda having nothing to do with past due bills to staffing firms.  

 

“In many cases, one or more of the defendants themselves reported time to and were paid by a staffing company, while one or more of the other defendants approved the reported time,” according to the Denver U.S. Attorney’s Office.  “That staffing company would pay the defendants, but [the defendants’ firms] never paid the invoices from the staffing company.”  

 

Knowledgeable observers believe the government’s interest in transforming a rather ordinary civil debt collection matter into a federal criminal case resulted from internal pressure placed upon government prosecutors by both the aggrieved staffing companies and large defense contractors who viewed IRP as a competitive threat.  It certainly appears odd that in America’s debt-laden society a simple matter of past due invoices would attract the attention of federal prosecutors.  Making a federal case out of this type of matter also calls into question prosecutors’ hollow of refrain of only possessing and being hobbled by “limited resources.”

 

Prosecutors in the U.S. boast about being able to “indict a ham sandwich,” but the first federal grand jury presented with the case against IRP’s principals incredibly refused to indict, an extremely rare occurrence.  Undeterred and apparently unimpressed with the jurors’ take on the matter, federal prosecutors took the same fact pattern to a second grand jury.  This time prosecutors found a more impressionable group of jurors who readily adopted the government’s revised version of events and returned a true bill, giving the government their elusive indictment.  The charges included the government’s typical vague, amorphous and non-descript “crimes” of conspiracy, mail fraud and wire fraud.

 

“Our court appointed attorneys were not doing their job to put together a viable defense,” said Gary Walker, CEO of IRP.  “They wanted us to do a plea deal.”  

 

The defense quickly ran into problems once the trial began.  USDJ Christine Arguello ruled key defense evidence to be inadmissible and prevented the defense from presenting a witness who would testify as to the reasonability of IRP’s procedures for dealing with staffing companies.  Such rulings are painfully common in U.S. federal courts as many judges see impeding the defense and bolstering the prosecution as part of their judicial role.

 

Arguello’s suitability to oversee the trial was called into question even before the first witness was heard.  David Banks, Chief Operating Officer for IRP, filed a pro se motion requesting that Arguello recuse herself due to her personal relationship with attorney Greg Goldberg.  Goldberg had arguably initiated the transformation of the accounts receivable matter into a full-blown criminal action by hand-delivering a letter to AUSA Matthew Kirsch requesting that IRP executives be criminally charged and articulating what specific federal statutes they should be prosecuted under.  Kirsch and Goldberg had previously worked together in the US Attorney’s Office in Denver.  Arguello had once worked for Holland and Hart, the firm Goldberg joined in 2002.  Arguello and Goldberg had also been candidates for the same federal judgeship.  Goldberg was gracious in defeat when he advised local media that he knew Arguello very well and felt she would do a good job.  Predictably, the motion for recusal was denied.  

 

During the 2011 trial, AUSA Matt Kirsch described the IRP defendants as slick opportunists who had learned to “game the system.”  Kirsch employed standard prosecutorial tactics of casting the defendants in as negative a light as possible and completely misrepresenting innocent actions.  This “win at any cost” mentality has nothing to do with furthering the aims justice and everything to do with padding prosecutors’ resumes and propelling them up the judicial-corporate ladder.

 

Federal prosecutors’ proclivity to find guilt in every act brings to mind the famous quote from Cardinal Richelieu, “If you give me six lines written by the hand of the most honest of men, I will find something in them which will hang him.”  

 

Toward the close of the trial, the defendants attempted to subpoena FBI agent Robert Moen in order to question him about discrepancies between earlier and later FBI interviews with staffing company representatives.  Moen was suddenly unavailable, having reportedly disappeared on a hunting expedition to a remote part of Colorado.  A friend of the defendants attempted to serve the subpoena at Moen’s home and was told by an FBI agent to stop trying to effect service because Moen would not be testifying.

 

The government unexpectedly rested its case early and threw off the defense’s witness schedule.  The change in schedule caused defense witnesses to be temporarily unavailable.  After two failed efforts to put a witness on the stand led to delays, Judge Arguello grew frustrated at the pace of the trial and threatened to conclude the defense’s case.  She told the defense during a sidebar discussion that one of the defendants would have to take the stand or the case would end.    Fearing that the defense’s opportunity to present its case would be taken from them, a decision was made to put IRP’s chief information officer, defendant Kendrick Barnes, on the witness stand.

 

Barnes was left with no choice but to repeatedly invoke his Fifth Amendment right against self-incrimination under questioning by AUSA Kirsch.  It would be difficult to imagine a more prejudicial spectacle for jurors to witness.  

 

All six IRP defendants were convicted after a three week trial and a little over two days of juror deliberations.  The defendants, all first time offenders, received incredibly harsh sentences ranging from 7 to 11 years, but the inappropriate comments made by Arguello during the sidebar gave the defense viable grounds for appeal as the judge’s instruction impermissibly compelled the defense to testify.  Standard jury instructions advise jurors that they must not infer guilt from a defendant’s failure to testify in their own defense, but what sort of instruction could reasonably be expected to overcome the highly prejudicial spectacle of a defendant asserting his Fifth Amendment privilege?   

 

Incredibly, the transcript of the sidebar has never been made available to the defendants.  Defense counsel has alternately been advised that the sidebar transcripts are missing or have been destroyed.  This has become increasingly common in federal courts and while examples of missing transcripts are admittedly anecdotal, when viewed in their totality it appears that the unavailability of trial transcripts may constitute a new tactic for perpetuating the government’s aforementioned 99% conviction rate.  

 

Whether or not it should be recognized as a prosecutorial tactic, the missing transcripts worked greatly against the IRP defendants.  Their appeal was denied in August of 2014, allowing their convictions for the government’s criminalization of civil indebtedness to stand.  

 

Famed retired jurist H. Lee Sarokin has written extensively on the matter of the IRP trial’s missing transcripts.   

 

And then the case itself raises so many unanswered questions: Why wasn't the critical conversation regarding the Court's direction to the defendants upon which they base their constitutional violation recorded?  Why did these defendants with no criminal records, no risk of flight, convicted of a non-violent crime receive such harsh sentences -- 7 to 11 years and repeatedly be denied bail pending appeal?