“The vagueness of federal law makes it relatively easy for a federal prosecutor to successfully prosecute any business, person or public official, especially those in financial embarrassment.’’
The six IT professionals dubbed the IRP6 are currently sitting in prison in Florence, Colorado for mail/wire-fraud waiting on their appeals and other legal motions. Their crime? A debt they incurred and the government accusing them of promoting a non-existent software, even though their product was profiled on the Policemag.com technology website.
This litigation involving a debt collection was filed by staffing agencies hired by IRP Solutions. It was turned into a criminal fraud by an overzealous FBI agent named John Smith and an ambitious Assistant United States Attorney (AUSA) named Matthew Kirsch.
Who are the IRP6?
They are Gary Walker, CEO; David Banks, COO: Clinton Stewart, VP; David Zirpolo, VP; Kendrick Barnes, CIO; and Demetrius Harper, CEO/DKH. Three of them are Veterans (2-Air Force/1-Navy) and none of them has any previous criminal charges. They are all Christian men, five black and one white, who have attended the same church for 20 years. Their families are awaiting their appeal results and fighting for their release.
IRP Solutions Corporation was a small black-owned company founded in February 2003 in Denver, Colorado by six outstanding IP executives. Its mission was to develop new law enforcement sharing software to aid local, state and federal agencies. They built their small IP Company from the ground up and focused on a product called CILC (Case Investigate Life Cycle).
The program was designed to be used from the very beginning of an investigation all the way to the prosecution. The men saw a pressing need for this type of product based on the Government’s claim that 9/11 occurred because state and Federal agencies lacked adequate information sharing platforms.
Hiring of staffing companies
For IRP to do business right after the dot-com meltdown meant that they had to obtain start-up funds in a very difficult climate. They went through the regular banking channels and approached venture capital people, but were turned down repeatedly. They then opted for staffing companies to provide them with the personnel they needed to keep the company running until it became profitable, which in their mind, was a certainty. The day they inaugurated their brand new office building, many people from law enforcement attended. They were already receiving many accolades and kudos for their products.
We can only assume that the staffing companies decided to do business with IRP because it could become very lucrative for them in the long term if IRP signed contracts with agencies like NYPD (New York Police Department) or the DHS (Department of Homeland Security) or any other important law enforcement group. The high demand for this type of software clearly motivated their decision.
The six IRP executives went to work, proud to commit to a task that could help their country. They really had a passion for helping law enforcement and were constantly tweaking the software according to the demands and specifications given to them by the agencies they were in contact with. In fact, they made numerous trips to the DHS and provided them with numerous quotes for IRP software modules, including a $70 million quote for their 2005 budget. They visited the Department of Justice, the Commissioner of Immigration Customs Enforcement and made presentations to the federal government. They even invited retired FBI and Immigration and Customs agents to share their insights on how to improve the software.
Their negotiations with NYPD and DHS seemed very promising and the IRP executives were convinced that they would close deals with one or more major agencies. On the other hand, they had scant working capital money. Their software still needed major tweaking which necessitated hiring more personnel. Otherwise, they would have to give up their dream, terminate their employees and contemplate bankruptcy. Their list of creditors was long. They persevered, however, seeing the light at the end of the tunnel in the form of law enforcement contracts.
The FBI Raid
Out of the blue, on February 9th, 2005, the FBI raided the offices of IRP Solutions. Twenty FBI agents showed up armed with a mail and wire fraud warrants based on an affidavit that IRP Solutions only had “purported’’ software. Meaning that they had no software at all. Was it a coincidence that the raid occurred only days after the FBI had appeared at Congressional hearings in an attempt to justify how they had wasted $400 million of taxpayer’s money on the development of law enforcement software packages that did not work? It made them appear incompetent and financially irresponsible. And their budget was depleted.
This subpoena was for financial records only but strangely enough, the agents left the records on the floor and spent the day trying to retrieve IRP Solutions’ intellectual property. Why would the FBI question the existence of the software when Police Technology Magazine reported favorably on CILC and its functionality? Something smelled fishy here and it did not come from IRP’s kitchen.
Let’s not forget that these men were competing with global companies such as IBM, Deloitte and Lockheed Martin for government contracts worth hundreds of millions of dollars and possibly much more eventually.
The IRP debacle started when a former AUSA was approached by a friend who happened to be the principal of a staffing company which was doing business with IRP. Pressured to help and fearing career consequences, the former AUSA wrote a letter to Assistant U.S. Attorney Kirsch explaining the theory of the case and how it should be investigated. So the case was born in the U.S. Attorney’s Office and was handed off to the FBI after the U.S. Attorney’s Office had developed a theory and a prosecutorial strategy.
It is important to note, however, that some staffing companies were first approached by the government and were asked by FBI agents, “Do you know that you are the victim of fraud?”
The famous assertion of renowned journalist, writer and civil liberties’ attorney Harvey Silverglate, certainly applies here: “the vagueness of federal law makes it relatively easy for a federal prosecutor to successfully prosecute any business, person or public official, especially those in financial embarrassment.’’
The first grand jury to hear this case refused to indict (a rare occurrence) which suggests that the government’s initial theory of the case and its prosecutorial strategy were seriously lacking. It means that, most likely, AUSA Kirsch and the defendants both genuinely believed their very different interpretations of the situation. The indictment was not ultimately handed down until June, 2009.
FBI agent Smith had requested a search warrant for IRP stating it was a front (shell) company, and AUSA Kirsch prosecuted the case in spite of strong evidence and expert witnesses that could substantiate the legitimacy of IRP Solutions.
The trial and conviction occurred in 2011 in Denver, Colorado. U.S. District Court Judge Christine Arguello presided over the case and blatantly denied any benefit of the doubt or reasonable doubt arguments that were raised by IRP.
Because IRP had kept responding to requests from the government to modify the CILC software, they consequently fell behind on paying their invoices to the staffing companies who ultimately did not get paid. After the invoices became delinquent, the allegations of wrongdoing arose and IRP was indicted for debts and for allegedly not having a ‘real’ product to market. It was suggested at trial that IRP had fooled the staffing companies into believing that they had a firm contract in the offing.
The side the jury never heard is that the staffing companies ran a Dun and Bradstreet credit check related to IRP’s payment history. Since, in the beginning, IRP had no payment history to speak of, none of the staffing companies could justify a reason to provide it with staffing services, which means that the services that were offered were based on the belief that, although IRP was a credit risk, the staffing firms would eventually win big if IRP succeeded at getting one or more contracts. They were rolling the dice and they knew it.
The reason the jury didn’t hear these facts is because Judge Arguello ruled inadmissible the testimony of the only witnesses that could have explained how staffing companies evaluate potential clients and make business decisions. Andrew Albarelle, a veteran of the staffing industry with a wide-ranging knowledge of the IT field, was prepared to testify that IRP’s outreach to staffing companies was reasonable and legal but his testimony was also disallowed.
Trial records also show that the men defended themselves pro se. “Our court appointed attorneys were not doing their job to put together a viable defense,” says Gary Walker, CEO of IRP Solutions. “They wanted us to do a plea deal,” Walker explained.
The vagueness of federal fraud law is legendary and because the narratives that could have been provided by Mr. Albarelle, Mr. Silverglate, former IRP employees, church members and even some FBI agents, were disallowed, the jury only heard the prosecution’s side of the case.
The IRP6 had a patriotic love for their country and big dreams for their security software CILC but in the end, they were “rewarded” with 7 to 11 year sentences at the Florence Correctional minimal security prison camp in Colorado.
The missing transcripts
During the trial, the IRP6′s 4th, 5th and 6th amendment rights were violated and now, shockingly, 200+ pages needed for their Appeal are missing from the court transcripts.
On October 11, 2011 Judge Arguello forced one of the IRP6 executives to take the witness stand against his will, violating his 5th Amendment rights. The portion of the court transcripts that would prove that Judge Arguello violated defendant Kendrick Barnes’ 5th amendment rights was removed and an edited version was provided to the IRP6. Several motions have been filed by their attorney requesting the unedited court transcripts that are needed to file their appeal. To date, the defendants’ attorney is being told that court transcripts are missing or have been destroyed.
“The Court Reporters Act, 28 U.S.C.A 753(b) makes it mandatory by Congress, that a court reporter shall record all proceedings verbatim in criminal cases held in open court which includes sidebars”, says Attorney Gwendolyn Solomon (attorney for five of the six defendants). According to Solomon the statute reads, “…all original notes are required to be preserved and available in the clerk’s office. The reporter or other individual designated to produce the record shall attach his official certificate to the original shorthand notes or other original records so taken and promptly file them with the clerk who shall preserve them in the public records of the court for not less than ten years.”
Famous attorney Mark Geragos has joined the legal team of the group, A Just Cause, in its lawsuit against the Federal Court Reporter demanding the release of the transcripts critical to IRP6’s appeal.
The case is currently under appeal based on Fifth Amendment Prohibition of Testimony, Sixth Amendment Right to Present a Defense, and Speedy Trial Act Violations.
This is the type of story that rarely appeals to the ‘mainstream’ media. It is hard to garner interest and sympathy for this type of non-glamorous conviction. But several websites have been created in defense of the IRP6 and there is growing support for their cause. Petitions are circulating. Many journalists have attempted to interview them but have been turned down by the correctional system. They are trying to keep the noose very tight around these men’s neck.
There is an element of sordidness about this case, probably because it is related to National Security and not only about owing money to staffing companies. This case should have been handled as a civic matter from day one. Nothing about these six executives indicated dishonesty and their product was real. It seems that their normal business practices were misrepresented by the prosecutors to foster the perception that they were scam artists.
A Federal imprisonment for the purported violations of civil law is uncalled for and questionable at best. It makes you wonder why the FBI agents raided the offices of IRP. In fact, one of the agents told the executives during the raid that he did not understand why they needed or were taking all that information.
After imaging their computers, the agents seized intellectual property, software documentation, software developers’ notes and everything to do with their product.
This ‘pressing’ matter in the eyes of the FBI, took two years to be processed. The IRP wanted to be heard but all their pleas were ignored. The story fell on deaf ears. Who wanted to acquire (steal) their software? Why take a case of debt collection to this level? Why not release the missing transcripts? Overcriminalization is a dangerous trend in America and this is another startling example of a David and Goliath case. But let’s not forget who historically won that fight.
For more information about the story of the IRP6 or for copies of the legal filings go to http://www.freetheirp6.org .
IRP Solutions round table part I and II:
UPDATE: A complaint was filed against Mark Geragos with the California Bar Association by Adocacy group A Just Cause citing that the attorney had violated Rule 3-500, “Communication”, and Rule 3-110, “Failing to Act Competently” after receiving $100,000 in fees.