The Elephant is still in the Room
Complicity has enlarged herself in the 10th Circuit Court of Appeals to include judicial cronies named Harris L. Hartz, Bobby R. Baldock and Jerome A. Holmes. These cronies finally issued an opinion in the IRP6 case, but as expected they still ignored the elephant in the room, the missing portion of the transcript, as if this issue of manifest injustice will somehow magically disappear. The opinion is replete with quackery and vain crony babbling, but they still couldn't deny that their corrupt bedfellow, the dishonorable judge Christine M. Arguello violated the IRP6's 5th Amendment right by coercing them to testify at the infamous October 11, 2011 sidebar in their criminal trial.
A quack is a dishonest practitioner who makes vain or false presentations of what is deceptive or hypocritical. This deception is predicated on half-baked thinking and is carried out by showing what is unreal and concealing that which is real. We previously have witnessed quackery with Judge Arguello and now with Baldock, Hartz and Holmes. A judge's most important responsibilities are fairness and justice. The crony judicial practitioners in the 10th Circuit have failed miserably in those responsibilities for the IRP6. Am I surprised? Not hardly, it was expected. Nepotism and cronyism are the foundation of judicial operations in the 10th Circuit and these crony judges, colluding with the Colorado U.S. Attorney's Office have brought disrepute on the entire U.S. justice system. The American public needs to be made aware of the routine despotic abuse by corrupt factions in our justice system, which includes the 10th Circuit Court of Appeals.
First, I would like to prepare the table of your mind by putting you in the courtroom the day Judge Arguello, flanked by Assistant United States Attorney's (AUSA) Matthew T. Kirsch and Suneeta Hazra, abused the IRP6 by coercing them to testify in their criminal proceeding in violation of their 5th Amendment right against self-incrimination. This is so you can have an appreciation and understanding of what the IRP6 were feeling. Second, I will walk you through the appellate panel's opinion and their crony analysis and reasoning, comparing it and drawing distinction to the sound reasoning of The Supreme Court of The United States (SCOTUS). Finally, I will conduct a mock cross-examination with this crony appellate panel, questioning them about the elephant in the room that being the missing transcript related to Arguello's coercion and their failure to adhere to their own precedent to reverse the conviction because of the missing portion of the transcript. Let's get started.
Imagine you are sitting in the gallery and observing a federal criminal trial where six pro se defendants are working together to defend themselves at trial. The defendants tell the judge that there witness, a criminal investigator for the Colorado Bureau of Investigation failed to comply with his subpoena and appear to testify. You witness the judge tell the defendants: "I told you to have your witnesses here. If you don't have another witness then one of you will have to testify or I will discontinue your case and put all of you in prison." You think to yourself, she can't do that and how it is their fault if a witness fails to comply with the subpoena! You watch the defendants huddle for a few minutes to discuss the threats and consider the dire consequences of not complying with the order of the judge. Believing that the judge would make good on her threats, the defendants exit their conference and a defendant ultimately takes the stand in front of the jury. His co-defendants, not happy that he is on the stand, proceeds with their direct examination, and ask their questions. The prosecutor, during cross-examination, asks the defendant a specific question and before the defendant can answer, one of the co-defendants, realizing that the judge making threats and forcing them to testify was wrong, stands to object, pleads the Fifth Amendment on behalf of the co-defendant on the stand and tells the judge she should declare a mistrial for telling the group that one of them had to testify. You witness the judge forcefully deny that she threatened them or forced them to testify and refuses to declare a mistrial. You are shocked and disturbed that a federal judge would lie about what she said. You think to yourself, why isn't the prosecutor saying anything? The defendant that took the stand tells the judge he will continue but he will invoke his Fifth Amendment right to every question. The judge tells the defendant he cannot selectively invoke his Fifth Amendment on the government's remaining questions and if he did the government could infer in front of the jury that his pleading the 5th could, in essence, be an indication of his guilt. The defendant continues to testify, invoking his Fifth Amendment on each of the government's remaining questions. You see the defendants make a request to the judge for the court reporter to provide them with the unedited transcript so that they can prove what the judge said. The judge says she can see no valid reason that 200 pages of the unedited transcript should be turned over to the defendants and refuses to do so. Ultimately the defendants are convicted and sent to prison.
Would you think this was a fair trial? What do you think was in the minds of each juror when they saw the one of the co-defendants suddenly jump up and abruptly stop his defendant, who by the way was testifying about business activities they engaged in together, from completing an answer and plead the Fifth Amendment on his behalf? Our haughty appellate panel, the dishonorable Judge's Bobby R. Baldock, Jerome A. Holmes and Harris L. Hartz implicitly intimated in their opinion that the trial was fair and actually stated that Judge Arguello did absolutely nothing wrong.
It is highly unlikely, as a human being with common sense, you would consider that the defendants received a fair trial given the actions of the judge forcing them to testify and you would definitely not feel you were capable of figuring out what the jurors were thinking as you observed these events. Our appellate panel are obviously a more intelligent life-form with amazing telepathic abilities as they are capable of reading a transcript to determine what IRP6 jurors were thinking two years ago. The panel's ability to read two-year old imprints of juror's thoughts and determine that not one of them were negatively influenced by the events that took place when the IRP6 were forced to testify is God-like. I hate to question their omnipotence, but a juror who spoke with justice advocacy organization, A Just Cause, stated that he was shocked upon his return to see one of the IRP6 defendants take the stand as he expected them not to testify based on their opening statements. I wonder how shocked he was when Walker stopped Barnes' testimony and accused the judge of coercion. But I digress. Black's law dictionary defines a fair trial as "A trial by an impartial and disinterested tribunal in accordance with regular procedures; especially, a criminal trial in which the defendant's CONSTITUTIONAL and legal RIGHTS are RESPECTED. The Supreme Court of the United States (SCOTUS) in the case of Moran v. Burbine, 475 U.S. 412 (1986) stated:
"The inquiry whether a waiver [of a right] is coerced has two dimensions...First the relinquishment of the right must have been voluntary in the sense that it was the product of a free and deliberate choice rather than intimidation, coercion, or deception. Second, the waiver must have made with a full awareness both of the nature of the right being abandoned and the consequences of the decision to abandon it."
A seminal question in the panel's analysis is whether the IRP6 defendants voluntarily waived their right against self-incrimination. All of the IRP6 defendants, in independent affidavits stated they heard Judge Arguello tell them that if they didn't have a witness ready to testify then one of them would have to take the stand or she would discontinue their defense. That is clear coercion. The portion of the transcript that would prove Judge Arguello's coercion has mysteriously disappeared so the appellate court can't make a determination if the coercive statements were made. The panel is aware that SCOTUS has held that a "knowing and voluntary waiver" cannot be inferred from a silent record. See Boykin V. Alabama, 395 U.S. 238 (1969). So their first insidious objective is to overcome the silent record and silent government because the transcript to prove allegations of coercion has disappeared. Federal appellate judge, The Honorable H. Lee Sarokin (Retired, 3rd Circuit Court of Appeals), a Huffington Post contributor, found that the U.S. Attorney's Office's omission to file an affidavit on what they heard at the sidebar "speaks volumes". On page 40, the panel cites from the transcript, the exchange captured between and Walker and Judge Arguello --- stating that Walker asked to check and see if defense witness Collin Reese was in the witness room and then returned to the court and immediately stated: "the defense calls Ken Barnes." That is not accurate in the edited transcript. Actually, there was another exchange between Walker and Judge Arguello prior to calling Barnes to the stand, which underscores our continued need for the unedited transcript and shorthand notes that is being concealed by the district court.
At the beginning of page 49, the panel states "[for the sake of argument, we assume that the defendant's assertions that Judge Arguello stated that if they didn't have a witness, then one of you will have to testify as valid]...However in doing so, we join the district court in concluding 'that defendant Barnes was still not compelled to the take the stand.' Accordingly, Mr. Barnes was not compelled to violate his Fifth Amendment rights." How can this panel conclude Barnes was not compelled when that portion of the transcript is missing? Answer: Cronyism. The panel continues, arguing that "Defendants have forfeited any purported Fifth Amendment objection to Mr. Barnes' decision to testify and to his testimony during direct examination. Neither Mr. Barnes nor any of the other Defendants raised any objections regarding these matters; in particular, none of them even intimated that Mr. Barnes was being compelled to testify by the district court. To be sure, when cross-examination commenced they raise their compulsion-related objection." The implication by the court here is that the defendants didn't interpose an immediate objection to Barnes testifying before he took the stand, therefore the right was waived. Under the circumstances of this case that simply does not apply. I would like to start with discussing a carjacking to lay the foundation for my analysis.
If someone was to climb into the back of your car, put a gun to your head and demand that you to drive, you are going to start driving. You are under duress. Do you want to comply or do you think the carjacker's actions are legal? No, but a gun to your head is quite persuasive and the consequences of not complying could cost you your life. So you start driving AGAINST YOUR WILL. Now put yourself in the place of pro se IRP6 defendants, who are facing a powerful judge in a trial where they are defending their innocence and fighting for their freedom. They are trying to put on the best defense they know how. The presentation of their case was the only tool they had to defend their innocence. Judge Arguello had already compromised IRP6's witness scheduling when she denied two witnesses, Andrew Albarelle and Kelli Baucom, who were on the witness list we provided to the Government two weeks before trial. Albarelle and Baucom were slated to provide a minimum of four hours or more of testimony. Then, Arguello tells us we better have witnesses available, many of which were law enforcement professionals that lived in the northeast. Judge Arguello provided no assistance to us in enforcing subpoenas and allowed FBI Agent Robert Moen to avoid testifying and being subpoenaed. Federal prosecutors and Judge Arguello spoke with some of our law enforcement witnesses prior to them testifying and Judge Arguello stood in open court and questioned us about what witnesses we had left and had us provide some details of their testimony while the prosecutors were present. If that wasn't enough, Judge Arguello angrily tells the IRP6 during a sidebar to take the stand and testify or she will cancel their defense and that just happens to be the only portion of the transcript missing from a 17-day trial. Feeling under duress, they believe the judge has the power to carry out her threat and without being able to present their defense, they feel their innocence and freedom is in jeopardy. So they comply AGAINST THEIR WILL. During cross-examination they become so distraught of what they've been forced to do, they stand and say we don't care what it costs us, this is just plain wrong. The only reason they agreed to testify in the first place was predicated on threats and intimidation from the powerful judge. The IRP6 was case-jacked by Judge Arguello.
SCOTUS requires that the courts frame their thinking with a presumption that a defendant would not waive his constitutional rights. In Johnson v. Zerbst 304 U.S. 458 (1938), SCOTUS "pointed out that 'courts indulge every reasonable presumption against waiver' of fundamental constitutional rights and we 'do not presume acquiescence in the loss of fundamental rights." The choice of whether to testify in one's own defense...is an exercise of the constitutional privilege. Malloy v. Hogan 378 U.S. 1 (1964)", because our panel views the IRP6 case through crony glasses, they failed to adhere to that standard of presumption.
To presume that the IRP6 defendants did not acquiesce to surrender their Fifth Amendment rights, the courts would first have to review the allegations set forth in their independent affidavits submitted as part of Federal Rules of Appellate Procedure 10(c), where each IRP6 defendant tells the same story --- that Judge Arguello told them if they did not have another witness to immediately take the stand then one of them would have to testify. The panel instead chooses to justify their position by focusing on the timing of the defendant’s objection, which occurred during cross-examination vice prior to Barnes beginning his direct testimony. The panel tosses up a Machiavellian argument in an effort to hold serve on SCOTUS precedent in Mitchell v. United States, 526 U.S. 314, 321 (1999). Mitchell is not only inapposite, it extinguishes the panel's entire argument.
The Mitchell case is about whether a voluntary guilty plea waives the self-incrimination privilege at sentencing. The panel in citing Mitchell, states: "that a witness ...may not testify VOLUNTARILY about a subject and then invoke the privilege against self-incrimination when questioned about the details." There was no dispute of whether Mitchell voluntarily pleaded as in the IRP6 case where the defendants assert they were compelled. The panel in the IRP6 case puts the cart before the horse by making a misguided and feeble attempt to discuss what happened after Barnes took the stand instead of addressing the coercion that sent him there. Mitchell also states that "[t]he normal rule in a criminal case is that no negative inference from the defendant's failure to testify is permitted", which obliterates the panel's finding that "the Government [was] within its rights to comment on [Barnes'] refusal to answer questions that are within the scope of the questions voluntarily given on direct examination." Prejudice attached when Barnes repeatedly invoked the 5th in front of the jury without voluntarily taking the stand. In a conspiracy case the very appearance of two co-conspirators intentionally looking like their trying to avoid answering questions is incriminating for the entire conspiracy. To add one of those defendant's taking the 5th multiple times thereafter is overwhelmingly prejudicial. Supreme Court Justice Scalia, joined by Justice's Thomas and O'Connor, in his dissent in the Mitchell case, discussed the predisposition and natural tendency of jurors to believe testimony that a defendant fails to contradict from not testifying or pleading the Fifth. “It is one of the natural (and not governmentally imposed) consequences of failing to testify-as is the factfinders increased readiness to believe the incriminating testimony that the defendant chooses not to contradict." Imagine how prejudicial or incriminating a jury might find events surrounding Barnes' testimony and Walker's dramatic objection and complaint against Judge Argurello about the IRP6 being forced to testify." The late Maya Angelou said "People will forget what you said, people will forget what you did, but people will never forget how you made them feel." The panel has no clue about how these jurors felt and for them to intimate human beings could simply set aside those dramatic events is more than folly, it's malfeasance. "It is difficult to imagine anything more prejudicial", exclaimed Sarokin on the Huffington Post. The Mitchell court went on to discuss the importance of a defendant not suffering a negative inference from pleading the Fifth in criminal cases, recognizing the "stakes are higher in criminal cases, where liberty or even life is at stake and where the government's sole interest is to convict." AUSA Kirsch was not questioning Barnes about his favorite food or hobbies. Kirsch's goal was to drill, grill and pressure him into looking guilty in front of the jury." This panel fully understands the dangers of defendants taking the stand against their will, especially when he and his pro se co-defendants, who would be questioning him, were unprepared to do so. The Mitchell court explained that the rule prohibiting an inference of guilt from a defendant's rightful silence constrains the prosecutor to carry his burden to prove allegations without unfairly benefitting from a negative inference while respecting the defendant's individual rights. As mentioned above, a fair trial is one where defendant's constitutional and legal rights are respected. What occurred on cross-examination is moot because direct examination shouldn't have happened after Judge Arguello compelled the IRP6 to testify. The panel incorrectly applies the law therefore their conclusions are wholly without merit.
Before moving on, I would like to tell you that the Mitchell court held that a defendant does not waive their self-incrimination privilege as a result of a voluntary plea.
It is the law of the 10th Circuit that reversible error occurs "when the unavailability of the transcript makes it impossible for the appellate court to determine whether or not prejudicial error was committed with regard the challenged action." See United States v. Haber, 251 F.3d, 889 (10th Cir. 2001). It is unfathomable that the panel, in their opinion, concluded that not only did Judge Arguello not commit prejudicial error, but no error at all. This is the type of half-baked thinking I discussed above that defines a quack. Quackery is the touchstone of cronyism and is the reason this panel failed to observe their own legal precedent. Judge Sarokin's characterization of the IRP6 case as "strange" is an understatement. I pondered how these crony judges would answer some basic questions if they were actually subjected to some general cross-examination so I put together a mock cross-examination to cut through their dazzling display of procedural analytics and complete lack of constitutional deference found in their opinion. I will conclude my commentary on the other side.
1) Did Judge Arguello make coercive statements at the October 11, 2011 sidebar, forcing the IRP6 to take the stand against their will?
PANEL: "We don't know"
2) Did you check the transcript of the sidebar to see if Judge Arguello made any coercive statements?
PANEL: There was no transcript of the sidebar for us to review?
3) So how can you say they were not coerced?
PANEL: We can't say, but there was no immediate objection so we assumed or imagined they wanted to take the stand or they wouldn't have taken it.
4) Weren't there numerous objections by the IRP6 that they felt compelled by the judge to take the stand because they were told by her that if they didn't have another witness immediately available one of them would have to testify?
5) What about their objections, do they not count for anything?
PANEL: Not in our eyes, we are obligated to protect Judge Arguello, not their rights. She is one of us.
6) But what about their constitutional rights?
PANEL: What about them?
7) Did the IRP6 defendant's also provide you with independent affidavits of what they heard at the sidebar as part of Federal Rule of Appellate Procedure 10(c)?
8) Did all of the IRP6's recollections in their affidavits show a consistent account of what each of them heard?
9) How can you just discount their version of events based on their independent recollections without something to disprove their veracity?
ANSWER: We really don't have an answer for that.
10) Did the IRP6 challenge Judge Arguello's prejudicial error of coercing them to testify at trial?
PANEL: Yes they did
11) Were you able to determine whether or not prejudicial error occurred?
PANEL: No we were not because the transcript was unavailable to us, therefore we could not verify exactly what happened.
12) Doesn't Tenth Circuit precedent in the case of Haber v. United States, state that if the appellate court cannot make a determination on whether prejudicial error occurred due to a missing transcript, the case must be reversed?
PANEL: Yes it does
13) Did you not on page 43 of your opinion you state that you assume arguendo that the IRP6's recollection of the district court's sidebar is correct?
PANEL: Yes we did
14) In other words, as stated in their affidavits, when the IRP6 stated that Judge Arguello coerced them to testify under the threat of resting their case, you take that to be the truth of what happened, correct?
15) So you think it is acceptable for a federal judge to force defendants to testify against their will?
16) If their 5th Amendment right was violated at that point in trial, shouldn't a mistrial been declared by Judge Arguello and doesn't that make the rest of issues surrounding Mr. Barnes testimony, including Mr. Walker's objection in front of the jury, curative instructions, etc. moot?
PANEL: We plead the 5th
17) Isn't it true that on page 43 of your opinion you use Judge Jackson's order in the lawsuit against Darlene Martinez to support your assertion that there is no missing transcript?
18) Are you also aware that Judge Jackson stated: It is undisputed that Judge Arguello said something [to the IRP6] that does not appear in the transcript --- either the unedited or edited version?
19) Do you dispute Judge Jackson's findings that Judge Arguello's statements are not a part of the record?
PANEL: No, we accept his findings
20) So you don't know if Judge Arguello coerced the IRP6's testimony in the portion that is missing, do you?
PANEL: NO!! We cannot make any determination on what was said because neither Judge Arguello's recollections nor the IRP6's recollection are part of the transcript.
21) On page 46 of your opinion, you provide a quote from Judge Arguello stating: "All the Court directed was that the defendants should call their next witness, at which time the defendants call Mr. Barnes, and Mr. Barnes voluntarily took the stand." Is that correct?
22) Also on page 46, you quote Mr. Barnes stating: "I was compelled to take the stand from our discussion up at the bench, as we approached the bench." Is that correct?
23) On page 49 of your opinion you stated "we join [Judge Arguello] in concluding that 'Defendant Barnes was still not compelled to testify" even though you accept the IRP6's versions of events of what occurred at the sidebar as true.
24) Also on page 49, you creatively imagine what the jurors thought about Barnes testimony by stating "that there was nothing incriminating in [Barnes] testimony?
PANEL: Yes, that is what we believe
25) Are you mind readers?
PANEL No, we can't read minds
26) The fact is, you have no idea what the jurors thought about Barnes' testimony or Walker's objection, or whether any of it was prejudicial in the minds of the jury, do you?
PANEL: “No we don’t”
27) On page 48, you underscored "that only Mr. Barnes Fifth Amendment rights [were] at issue", correct?
28) But you accepted the fact that Judge Arguello told the all of the defendant's at the sidebar that one of them would have to testify, correct?
PANEL: Yes, as we mentioned in our opinion we made our decision assuming we accepted the defendants, all defendants were told by Judge Arguello at the sidebar that one of them would have to testify.
29) On page 54 you stated that "the district court properly observed, by voluntarily testifying on direct examination, he forfeited his right to invoke his Fifth Amendment on cross-examination, correct?
30) How can you say the district court properly observed that Barnes voluntarily testified on direct examination when you proceeded on the assumption that he was forced to testify by Arguello at the sidebar?