A Need for Speedy Appeal Legislation - An IRP6 Case Study

"When a society acts to deprive one of its members of his life, liberty or property, it takes its most awesome steps. No general respect for, nor adherence to, the law as a whole can well be expected without judicial recognition of the paramount need for prompt, eminently fair and sober criminal law procedures. The methods we employ in the enforcement of our criminal law have aptly been called the measures by which the quality of our civilization may be judged. Second, the preference to be accorded criminal appeals recognizes the need for speedy disposition of such cases. Delay in the final judgment of conviction, including its appellate review, unquestionably erodes the efficacy of law enforcement." Coppedge v. United States, 369 U.S. 438 (1962).

The above quote was the Supreme Court of the United States (SCOTUS) expounding on the establishment and spirit of Rule 39(d) of the Federal Rules of Criminal Procedure and the principal purpose for which it was created --- in that "preference shall be given to appeals in criminal cases over appeals in civil cases". Congress, through the founding fathers of our Constitution, recognized the solemnity of depriving a person of their life, liberty or property and created 39(d) to provide legislation to Courts of Appeal so that they are mindful of their moral imperative to be "prompt, eminently fair and sober" when reviewing and deciding appeals when the deprivation of our inalienable rights are at stake. Rule 39(d) was abrogated from the Federal Rules of Criminal Procedure and transferred to the Federal Rules of Appellate Procedure --- giving the responsibility to Courts of Appeal to ensure higher priority is given to criminal cases over civil cases.

Historically, the 10th Circuit Court of Appeals has been one of the most efficient courts in the U.S., if not the very best, at deciding appeals consistent with the spirit of 39(d). The Practioner's Guide To The United States Court of Appeals for the 10th Circuit (Ninth Revision, April 2014) states: "During the statistical calendar year ending June 30, 2013, the median time from filing the NOTICE OF APPEAL or petition for review to entry of a decision for all appeals and agency proceedings was 8.2 months. [The Tenth Circuit] hears most criminal appeals as soon as they are FULLY BRIEFED." Eight months is an impressive average, which makes the delay in the IRP6 case incredibly abstruse. Our case was FULLY BRIEFED on January 22, 2013. That was 15 months ago - almost two times the 10th Circuit's 8.2 month average. Our NOTICE OF APPEAL was filed in October-November 2011. That was 32 months ago - four times the court's average. That can be considered nothing less than an inordinate delay.

The 10th circuit's uncharacteristic delay of the IRP6 case is confusing to prominent jurists in our society, including retired federal appellate court judge, The Honorable H. Lee Sarokin, a Huffington Post contributor. Judge Sarokin, after taking a few weeks to review available transcripts of our case, wrote three articles titled "The Case of the Missing Transcript", which can be viewed at www.huffingtonpost.com/judge-h-lee-sarokin/. Judge Sarokin, who retired from the 3rd Circuit Court of Appeals, stated that "...one cannot help but wonder wherein the delay lies?" The Supreme Court of the United States (SCOTUS) stated in the case of Barker v. Wingo, 407 U.S. 514 (1972), that "justice is supposed to be swift and deliberate." So, what constitutes an inordinate delay?

In the case of Harris v. Champion, 15 F.3d 1538, 1557 (10th Cir. 1994), the 10th Circuit speaks very strongly about the right to a speedy appeal --- opining "that in inordinate delay in adjudicating a defendant's direct criminal appeal...give[s] rise to an independent due process violation...An appeal that is inordinately delayed is as much a 'meaningless ritual' as an appeal that is adjudicated without the benefit of...a transcript of the trial court proceedings." The 10th Circuit court in the Harris case established 2 years as a baseline for inordinate delay but stated that it really depends on "the particular circumstances of a case." The Harris court provided the following examples of inordinate delay:

1) Dozie v. Cady, , 430 F.2d at 638, held that a seventeen month delay in filing opening brief warranted an inquiry into a due process violation.

2) Jones v. Crouse 360 F.2d at 158, held that delay of more than 18 months in processing appeal of collateral attack warranted inquiry into a due process violation.

3) Burkett, 951 F.2s at 1445-46, held that an eighteen month delay between sentencing and decision on appeal gave rise to a due process violation.

The IRP6 were SENTENCED in July 2012. That was 23 MONTHS ago. The "particular circumstance" in the IRP6 case is a missing transcript portion where the IRP6 allege judicial misconduct by Judge Christine M. Arguello in forcing their testimony under threat, which is a violation of their 5th Amendment right against self-incrimination. Judge Sarokin, in part three of his series on the IRP6 case stated: "With all of this uncontroverted evidence [in the incomplete transcript], the Court of Appeals certainly has enough evidence to conclude that the right against self-incrimination indeed was violated by the trial court; that defendants reasonably believed that at least one of them was required to testify in order to have the defense remain open; and they succumbed to that threat, and immediately voiced their objections". Sarokin was able to draw these conclusions after only a few weeks of viewing the transcript. The 10th Circuit case, United States v. Haber 251 F.23 881 (10th Cir. 2001), addresses the court's position regarding the unavailability of a transcript --- "it is reversible error when the unavailability of a transcript make it impossible for the appellate court to determine whether or not prejudicial error was committed with regard to a challenged action". The delay in the IRP6 case is unprecedented and can only be described, as bizarre.

Federal appellate courts across the United States have found that this particular type of circumstance [an unavailable transcript] warrants a quick decision on appeal. What makes IRP6 delay so baffling is that the trial Judge Christine M. Arguello, the court reporter and another federal Judge, The Honorable R. Brooke Jackson, have all stated that portions of the transcript related to the prejudicial statements are indeed missing. Other federal appellate courts across the U.S., like Judge Sarokin, have found that an unavailable transcript warrants a speedy decision on appeal.

1) The DC circuit case of United States v. Workcuff, 422 F.2d 700 (DC. Cir. 1970) took TWO MONTHS to reverse a conviction where the unavailability of a transcript made it impossible for them to determine whether the appellant's rights had been violated. The Workcuff court stated: "It is difficult enough in normal circumstances to appraise the propriety of the trial court's various actions on the basis of a cold printed record; when that record is replaced with incomplete hearsay recollections of one of the parties, our exercise is turned into an exercise in creative imagination... Absence of this information constitutes a fatal defect, and therefore the judgment MUST BE REVERSED..."

2) The 9th Circuit case of United States v. Johnson, 231 F.3d 43 (9th Cir. 2000), also took TWO MONTHS. In this case, the Government acknowledges the loss of the transcript. (In the IRP6 case, the trial judge, court reporter and federal Judge R. Brooke Jackson in a collateral civil proceeding acknowledge missing transcript portions). The Johnson court stated: "We are not in a position to weigh these factors and we cannot be certain what the trial judge's [actions] might have been in this case...We then weigh the likelihood that reversible error occurred, along with the...efforts of the parties to reconstruct the record... Despite Mr. Johnson's good faith effort to reconstruct the record...no reconstruction was possible...Based on these concerns, JUSTICE REQUIRES that the case be remanded..."

3) The 3rd Circuit case of United States v. Rodrigues, 491 F.2d 663 took FIVE MONTHS. The court concluded that given "[t]he ambiguous testimony...and the unavailability of a full transcript make it impossible for us to [make a determination]...a new trial is proper."

The requirement for speedy disposition of appeals is rooted in the Sixth Amendment right to a speedy trial. SCOTUS, in the Barker v. Wingo case discussed that the right to a speedy trial is "fundamental" and is imposed by the due process clause of the [5th Amendment]. Additionally, the speedy trial guarantee supports society's interest that all accused persons shall be treated according to decent and fair procedures and will not have to suffer prolonged anxiety, jail time, and quality of life while awaiting trial. Likewise, an inordinate delay in deciding an appeal causes a person to suffer prolonged imprisonment and anxiety waiting on their appeal to be decided. Imagine how unfair and inhumane is it to spend 2 years in prison only to have your case overturned? Years of your life wasting away, your family and children suffering, while judicial officials insouciantly neglect to process your appeal in a timely manner. This is why Rule 39(d) was originally established and why federal appellate courts across the U.S. have adopted speedy appeal measures. Unfortunately, these measures and procedures are not prompt, eminently fair and sober enough to ensure that appellants aren't suffering prolonged anxiety and sometimes wrongful imprisonment waiting on a decision. Legislation is desperately needed to protect the due process rights of appellants. The Bail Reform Act of 1984 (BRA) was established to provide the courts with the appropriate criteria and guidelines for granting a bond to insure that a person found guilty does not suffer unnecessary anxiety and oppressive imprisonment, either before trial or on appeal when a substantial error or constitutional violation occurred during trial that is likely to result a reversal of conviction. The IRP6 are not only suffering oppressive incarceration and anxiety from a delayed appeal decision, but also was denied bail even though they satisfied the requirements of the BRA.

According to the BRA, a person who is found guilty is supposed to be detained pending appeal, UNLESS, they can show by CLEAR AND CONVINCING EVIDENCE that 1) they are not a flight risk, 2) they are not a danger to the community and 3) their appeal raises a substantial question of law or fact likely to result in reversal or a new trial. According to Black's Law Dictionary 636 (9th ed. 2009), clear and convincing evidence is defined as "evidence indicating that the thing to be proved is highly probable or reasonably certain." In other words, the IRP6 would have to present clear and convincing facts and evidence that they will not flee, are not dangerous to others in the community and that the appellate court is likely to reverse their conviction based on issues they are presenting in their appeal. I will start with prong number three, whether our appeal raises a substantial question of law or fact that the appellate court is likely to reverse.

The unavailable transcript issue discussed above clearly raises a substantial question of law and is reversible error according to well-settled law of the 10th Circuit in the Haber case and SCOTUS. Judge Sarokin confirmed that the case should be reversed on this basis. This is clear and convincing evidence that satisfies the 3rd prong for bond pending appeal. Judge Arguello completely ignored this evidence. The Government did not argue prong 2 --- that the IRP6 were a danger to the community. However, they presented false arguments that we were a flight risk.

Court transcripts show that in an opening statement, the Government stated that none of the IRP6 got wealthy from the alleged scheme they were accused of. But after trial, the Government argued in the motion to deny bond, that the IRP6 was a flight risk based on millions of dollars in payroll that was unaccounted for that the IRP6 could use to flee. This was an outright lie and doesn't correlate with a lack of wealth. The Government's own forensic accountant confirmed government contentions that the IRP6 did not get wealthy and provided detailed facts and exhibits that the money staffing companies paid went directly into the pockets of their own employees, who were information technology contractors that submitted timesheets for the hours they worked at IRP Solutions.

To support their argument for unaccounted assets, the government audaciously compared the IRP6 to Bernie Madoff, the architect of a $20-$50 billion dollar Ponzi scheme, who had residences outside the United States and billions in ill-gotten gains that were actually unaccounted for. As the length of sentence argument goes, the Government asserted that because of the possibility of lengthy sentences, the IRP6 had a greater motivation to flee. The Government and the court made us aware that we were facing up to 20 years in prison at our arraignment if we were to be convicted. We had more than enough motivation to flee at that time and chose not to. In fact, we had our passports for 2 years leading up to trial and could have fled the country.

After trial, we spent 42 days in jail before Magistrate Judge Boland release us on bond pending sentencing for 8 months. We did not attempt to flee during the eight months. Gary Walker and Ken Barnes were sentenced on July 23, 2012 to 11 and 7 years respectively. The four of us witnessed Gary and Ken's sentences. Expecting that we would face the same fate the next week, we still did not flee. These facts are clear and convincing evidence that we were not a flight risk, yet Judge Arguello turned a blind eye and deaf ear to all of it. Given that we had successfully rebutted the presumption of detention, Judge Arguello was mandated by law to grant us bond. The 2nd Circuit Court of Appeals discussed this mandate in the case of U.S. v. Abuhamra, 389 F.3d 309 (2nd Cir. 2004):

"While this burden (clear and convincing evidence for bond pending appeal) is substantial, if a defendant can make the required evidentiary showing, the [Bail Reform Act] establishes a right to liberty that is not simply discretionary but mandatory: the judge 'shall order the release of a person in accordance with section 3142(b) or (c)". In sum, even though a guilty verdict greatly reduces a defendant's expectation in continued liberty, it does not extinguish that interest. The language of 3143(a) confers a sufficient liberty interest in continued release (on satisfaction of the specified conditions) to warrant some measure of due process protection."

As you can see, the IRP6 earned bond by satisfying all the criteria of the BRA, yet Judge Arguello chose to imprison us in spite of the law. Not only did Arguello ignore the transcript issue but provided no substantive analysis related to the issues of speedy trial, denial of expert witness and the actual 5th Amendment violation in forcing our testimony.

There are good laws on the books that if properly applied, would accomplish the purpose for which it was created. However, when government officials fail to properly apply, misuse or abuse the law to the detriment of the citizenry, it is the responsibility of Congress to amend the vagueness of the laws by adding more specific language to insure compliance and protect the rights of the people. The IRP6 injustice is not a place in fiction. The pain suffered by the IRP6 and their families is real! The gross abuse of power and violence to the law is real! We have been forced to endure oppressive incarceration. We are victims! Congress and the President of the United States must act to stop ruinous misapplication of laws from being perpetrated in our justice system. "We should never forget the sobering words of The Supreme Court of The United States concerning a preference being given to criminal cases over civil cases in deciding appeals:"

"When a society acts to deprive one of its members of his life, liberty or property, it takes its most awesome steps. No general respect for, no adherence to, the law as a whole can we be expected without judicial recognition of the paramount need for prompt, eminently fair and sober criminal law procedures. The methods we employ in the enforcement of our criminal law have aptly been called the measures by which the quality of our civilization may be judged...Delay in the final judgment of conviction, including appellate review, unquestionably erodes the efficacy of law enforcement."

On June 3, 2014, A Just Cause (AJC) issued a press release concerning research they had conducted on nineteen cases submitted during the same time period, as the IRP6 case and found that all had been decided except one --- some of those cases were civil. AJC 's research, also found that the 10th Circuit had decided appeals and rendered decisions for 1363 cases between May 1, 2013 to May 30, 2014, many of which were civil. If members of our judiciary fail to recognize the importance of being prompt and fair, our laws need to be amended to incorporate more specific quality controls to remind the courts of their moral duty and responsibility to give greater deference and speed to criminal appeals where the deprivation of life and liberty are at stake. It is the right thing to do.