Did Colorado Judge and US Attorney's Office Commit Fraud To Gain Conviction? Says Advocacy Group, A Just Cause

Trial Judge and Appellate Court Allowed Key Expert Witnesses To Be Excluded Based On Prosecutor's Fraudulent Use of The Law

Feb 25, 2016, 08:50 ET from A Just Cause

DENVER, Colo., Feb. 25, 2016 /PRNewswire-USNewswire/ -- "We have irrefutable proof that US Attorney John Walsh and Matthew Kirsch conspired together with Judge Christine Arguello, to wrongly-convict and imprison the IRP6 defendants," says Lamont Banks, Executive Director of A Just Cause.  "It all started at trial when federal prosecutor Matthew Kirsch falsely represented he was entitled under the law, specifically Rule 16 of the Federal Rules of Criminal Procedure, to review anticipated testimony of two defense expert witnesses," adds Banks. "Under the law, the IRP6 had no obligation to disclose any information about their expert witnesses, yet Kirsch used this underhanded and illegal maneuver to gain a tactical advantage," exclaims Banks. "Sadly, the courts are culpable because they intentionally misapplied the law in the same fashion," adds Banks.

According to 10th Circuit case law "a defendant IS NOT required to file a Rule 16 disclosure UNLESS the defendant has made a similar request of the government under Rule 16(a)(1)(G) and the government has complied. Court records show that the pro se IRP6 defendants never made any similar requests of the government. In 2009 Nacchio case, the entire 10th Circuit Court of Appeals explained a defendant's Rule 16 obligations.

"Under Rule 16(b), if a defendant requests disclosure of certain evidence and the government complies, the defendant becomes obligated to make certain disclosures in return," 10th Circuit Judge McConnell said in the Nacchio case. "Specifically, if the defendant requests and receives a written summary of any expert testimony the government intends to introduce, the defendant must provide similar notice of any expert testimony he intends to use," McConnell added. "In particular, Rule 16 does not require experts in criminal cases to provide written reports explaining their opinions or to make a written proffer containing the information under civil rules," McConnell expounded.

The House Judiciary Committee also made it clear what the purpose of Rule 16 was and how it should be applied.  According to the 1975 Judiciary Committee advisory notes (House report 94-247), Rule 16 disclosure is "defendant-triggered," and its purpose is to minimize the "undesirable effect of surprise" witnesses at trial. "If the defendant asks for and receives a list of prosecution witnesses, then the prosecution may request a list of defendant witnesses," the Judiciary Committee advised. "These officers of the court snubbed their noses at the law and at Congress' advisements," says Banks.

Court records show that both experts from the staffing industry, Andrew Albarelle and Kelli Baucom, sent letters to U.S. Attorney John Walsh 2 months before trial challenging the government's central allegation that staffing executives were induced by verbal statements about government contracts to extend credit instead of relying on creditworthiness. "The term contract has little or no bearing on whether we engage with that company or not.  We base our decision to engage with a company on its creditworthiness, cash flow or the product they are developing," Albarelle said in the letter. "The agencies/firms were in no way forced to conduct business with [the IRP6]-they chose to do so...these agencies saw the potential to make a lot of money and chose to assume the risk," Baucom wrote to Walsh."

"I suspect Kirsch fraudulently used Rule 16 because allowing testimony by 2 independent experts about how staffing companies evaluate business opportunities and extend credit would not only make the jury aware that the case was a civil matter but would destroy the government witnesses' false claims of inducement," says Cliff Stewart, A Just Cause.

In their opinion affirming the IRP6 conviction, 10th Circuit Appellate judges Jerome Holmes, Bobby Baldock and Harris Hartz said: "it was not an abuse of discretion by Judge Arguello to exclude the testimony of Albarelle and Baucom based on Defendant's failure to comply with Rule 16 disclosure requirements." Not true, "this court has held time and time again that a district court abuses its discretion if it applies the wrong legal standard," Judge McConnell said in the Nacchio case.

"It is undisputable that Judge Arguello and the US Attorney broke the law to gain a conviction against the IRP6 and violated their Sixth Amendment right to present witnesses in their favor," adds Banks. "We renew our calls to President Obama, Attorney General Lynch and members of Congress to release the IRP6 from prison and hold these officials accountable for their misconduct," concludes Banks.


Lamont Banks
Executive Director
A Just Cause
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SOURCE A Just Cause