The Grand Jury is Not So Grand
"Perjury has become the coin of the realm in federal law enforcement. People's homes are invaded because of lies. People are arrested because of lies. People go to prison because of lies. People stay in prison because of lies and bad guys go free because of lies." This quote comes from the book, Tyranny of Good Intentions, citing conclusions by the Pittsburgh Post-Gazette newspaper after conducting an exhaustive two year investigation into prosecutorial misconduct. Prosecutors in the IRP6 case, United States Attorney John Walsh, Assistant United States Attorney Matthew T. Kirsch and Assistant United States Attorney Suneeta Hazra are poster-children for building a federal criminal case on nothing but lies. Kirsch and Hazra not only suborned perjury for about twenty liars from the staffing industry but silently colluded with Judge Arguello to coerce the IRP6 to testify in violation of their constitutional rights. Their conduct clearly violated ethical standards and criminal law.
In the IRP6 case, prosecutor's core argument was that the IRP6 verbally lied to staffing company executives about having a government contract, which they say induced them into extending credit in the form of payrolling contract employees. From a personal perspective, imagine being charged with a federal crime and brought to trial based on allegations that you verbally lied to a bank manager about having a high paying job, which fooled them into extending you credit. No one would believe this because there is not a bank in the world that would extend credit or give you a loan based on verbally telling them you had a great job. If the banker testified in court that the only reason he extended you credit is because you told him you had a great job, he would be viewed as having absolutely no credibility and get laughed off the witness stand based on the outrageousness of his lie. Almost every staffing company executive committed perjury at the IRP6 trial by telling the lie that they were duped into doing business with IRP Solutions because they were verbally told about a government contract. Walsh, Kirsch and Hazra were well aware that the staffing company witnesses were lying because there was substantial evidence to the contrary. Walsh and Kirsch received a detailed proffer containing IRP6 emails to staffing companies in which there was no mention of having a contract. In fact, many of the emails stated that IRP was "working to secure a contract" or "working on a project". Kirsch and Walsh also had in their possession, staffing services contracts provided by the staffing company and signed by some of the IRP6. Kirsch's only option at trial was to convince his witnesses to commit perjury by saying that the IRP6 verbally communicated that they had a contract because the physical emails were void of such a statement.
To our recollection, only two responsible staffing company executives were honest in their testimony at trial --- Donald Crockett of CTG and Scott Tait of Adecco Technical Services. Ken Barnes (IRP6) actually interviewed with Tait and went to work for Adecco after the FBI had spoken to Tait during the investigation. Barnes actually worked two projects for Adecco simultaneously. Kirsch and Hazra criminalized the common practice of information technology (IT) contractors working multiple contracts and falsely represented to the jury that billing eight hours per day per contract is fraudulent conduct. Prior to trial, as part of the proffer provided to Kirsch and Walsh, the IRP6 provided proof that working multiple contracts with staffing companies is common in the information technology industry. The proffer contained actual timesheets, invoices and paystubs from two information technology contractors --- one was working four contracts and billing thirty-two hours per day and the other was working three contracts, billing twenty-four hours per day.
Additionally, Kirsch and Walsh received a letter from Andrew Albarelle, the Principal Executive Officer for Remy Staffing in Denver, informing them that it is not only common practice in the staffing industry for IT contractors to work multiple contracts, but it is encouraged by staffing companies because they can bill more hours and make more money. Obviously, that is why Adecco permitted Barnes to work multiple contracts. Kirsch and Walsh ignored all of this evidence and chose to distort the practice and characterize it as an illegal double billing or triple billing scheme. Prosecutors exploited juror's ignorance of information technology consulting by saying it is impossible for anyone to work 24 hours in a day and still find time to sleep. Certainly, mostly all the jurors, school teachers, irrigation diggers and others unfamiliar with IT contracting wouldn't comprehend how this was possible. Judge Arguello refused to allow Albarelle and another Remy professional to explain to the jury how the industry worked, stating that they were not qualified to be an expert witness. Disallowing these witnesses obviously prejudiced the IRP6 from presenting a complete defense, which is a violation of the Sixth Amendment. The IRP6 are in prison because Walsh, Kirsch and Hazra distorted facts and conspired together to suborn perjury with eighteen other staffing witnesses throughout the entire IRP6 trial. Judge Arguello provided material support to their conspiracy to convict the IRP6.
Kirsch and Hazra's devious strategy was to win by overwhelming the jurors with a large number of lying witnesses --- imprinting in their minds that so many government witnesses couldn't possibly be lying about the IRP6 saying they had a contract. The government's objective was to distract the jury from the fact that BUSINESSES OR BANKS DON'T EXTEND CREDIT BASED ON VERBAL REPRESENTATIONS. They evaluate your credit-worthiness based on your income and your credit history. Mostly all of the witnesses admitted that they were not responsible for deciding whether or not credit would be extended to IRP Solutions; it was their credit departments who made the decision. If the staffing company credit departments made the decision, then the government witnesses obviously committed perjury when they falsely stated they were induced into making the decision to extend credit based on alleged statements about a contract from the IRP6. Court records show that the staffing companies checked IRP Solutions credit reports and references, which showed IRP Solutions was a high credit risk. That is quite common for startup companies. Some of the IRP6 signed personal guarantees, putting themselves at financial risk in the event the business failed to pay. From the beginning, Walsh and Kirsch were aware of all these facts, but still pursued a prosecution built on nothing but lies. Kirsch and Hazra were relentless in suborning perjury by repeatedly asking staffing company witnesses would they have wanted to know if IRP Solutions didn't have a government contract and would it have made a difference in their "imaginary" decision-making process.
Another fact about the staffing industry that many may not be aware of is that every person that worked at IRP Solutions as a contractor was an EMPLOYEE OF THE STAFFING COMPANY. The wages paid by staffing companies were paid DIRECTLY TO THEIR OWN EMPLOYEES who were outsourced or farmed out to perform work at IRP Solutions. As is customary in business, staffing company employees filled out their timesheets for hours they worked on IRP Solutions projects and submitted it to their employer for payment of their wages. Staffing companies would remit an invoice to IRP Solutions for staffing services they provided. When IRP failed to pay their debts to the staffing company, they were charged, convicted and imprisoned. In fact, in a Freudian slip, FBI Agent John Smith, in open court, stated that if IRP Solutions had paid their debts, they would've not be prosecuted. This is further bolstered by a letter sent from the FBI to a staffing company that IRP's debt was a civil matter, not criminal.
The reason IRP's revenue was stifled and they couldn't pay their staffing debt was because the FBI was undermining our sales efforts with numerous law enforcement agencies in our sales pipeline. The FBI continued interfering with our business years after they raided our business in February 2005, making it impossible for us to generate revenue to pay our debts. In 2009, IRP Solutions were on the verge of closing business with the Philadelphia Police Department and Philadelphia Office of the Inspector General until Kirsch spoke with Philadelphia Inspector General Amy Kurland, telling her an indictment was coming. The City of Philadelphia terminated dealings with IRP. If IRP had generated revenue with Philadelphia to pay their debts, Kirsch's prosecution would have failed. Kirsch was not going to let that happen. Walsh, Kirsch, Hazra and the FBI's conduct rises to violations of 18 U.S.C 371, Conspiracy to commit offense or to defraud the United States and 18 U.S.C 1622, and Subornation of Perjury.
"'It is well-established that the term "defraud" as used in [18 U.S.C. 371]...'not only reaches scheme which deprive the Government of money or property, but also designed to protect the integrity of the United States and its agencies'...Section 371 covers acts that 'interfere with or obstruct one of [the United States] lawful Government functions by deceit, craft, trickery, or at least by means that are dishonest.'" Collucio v. United States, (2004, ED NY) 313 F. Supp. 2d 150, 93 AFTR 2d 1944. This is considered a Klein Conspiracy. The Collucio Court described the four elements of a Klein conspiracy as (1) person entered into an agreement with one or more people, (2) to obstruct lawful government function, (3) by deceitful or dishonest means, and (4) committed at least one overt act in furtherance of the conspiracy.
The IRP6 have always argued that Judge Arguello and court reporter Darlene Martinez conspired to conceal Arguello's coercion of the IRP6 to testify because that part of the transcript mysteriously disappeared. Kirsch and Hazra joined the conspiracy when they tacitly entered into an agreement with Arguello and Martinez to obstruct justice, violate the IRP6's 5th Amendment rights and conceal both Arguello's coercion and the transcripts by failing to provide testimony or an affidavit of what they heard during the bench conference. In doing so Kirsch and Hazra committed an overt act to further the conspiracy. Kirsch and Hazra's overt act resulted in them gaining prejudice against the IRP6 with the jury and win a wrongful conviction. The law states that a party's knowing receipt of gains from the conspiracy satisfies the overt act requirement of the conspiracy. Kirsch and Hazra’s actions also show they suborned perjury and conspired to suborn perjury when they entered into an agreement to induce staffing company representatives to commit perjury. Both conspiracy and subornation of perjury is punishable of up to five years in prison. The actions by Walsh, Kirsch and Hazra also violated ethical rules of conduct for attorneys. According to the American Bar Association, Rule 8.4, Misconduct, It is professional misconduct for a lawyer to "engage in conduct that is prejudicial to the administration of justice", or "engage in conduct involving dishonesty, fraud, deceit, or misrepresentation". To sum up the conduct of Walsh, Kirsch, Hazra and the FBI, I turn to another quote from the Tyranny of Good Intentions, again citing the Pittsburgh Post-Gazette conclusions from their investigation into prosecutorial misconduct:
"...federal agents and prosecutors have pursued justice by breaking the law. They lied, hid evidence, distorted facts, engaged in cover-ups, paid for perjury and set up innocent people in a relentless effort to win indictments, guilty pleas and convictions."
Touché! The facts and circumstances show that the IRP6 are in prison because federal prosecutors and the FBI conspired together to maliciously prosecute and convict the IRP6 based on lies, lies and more lies. Perjury truly is the coin of the realm in law enforcement.