Advocate for the Wrongfully Convicted, A Just Cause, Questions If Financial Privacy Act Was Violated As Probe Continues In Colorado Federal Criminal Case

July 2, 2013

Did Colorado Federal Court Knowingly Allow Violation of Citizens' Rights to Privacy, Asks A Just Cause

(PRWEB) July 02, 2013

A Just Cause continues to investigate a federal case in Colorado that involved six Colorado business executives who were convicted of mail and wire fraud charges in 2011. The six executives, who represented themselves pro se, have maintained their innocence throughout.

The six executives (Kendrick Barnes, Gary L. Walker, Demetrius K. Harper, David A. Zirpolo, Clinton A. Stewart and David A. Banks) were with IRP Solutions Corporation, a software development company engaged in the development of criminal investigations software for federal, state and local law enforcement.

Court records show that during pretrial motions and hearings the defendants argued that the Financial Privacy Act was violated by the FBI when it obtained banking records of the defendants during the course of its investigation. The defendants argued that the FBI illegally obtained banking records by not providing subpoenas or approval from the courts to probe into the banking records of the defendants, the defendants' families, friends, church, and their Pastor. The defendants allege that the FBI was attempting to show that there was a scheme, but in doing so violated rights to privacy. (Case 1:09-cr-00266-CMA Document 272 Filed 08/12/10 USDC Colorado).

“In this case, what we have is the fact that as we looked at our discovery, we discovered 8,000 pages of financial records of various people, including some of the defendants. And just the way in which those records were provided to us in discovery, you can't tell, except with a few exceptions, how it is that the government came into possession of those records”, said Robert S. Berger, former defense attorney for Clinton Stewart during a 2010 hearing. (Case 1:09-cr-00266-CMA Document 272 Filed 08/12/10 USDC Colorado).

“There is some question about how the government got these (banking records),” said Thomas E. Goodreid, former defense attorney for Kendrick Barnes, during a 2010 hearing. Goodreid pointed out that in the case of defendant Kendrick Barnes, records were not released by an authorized department of his financial institution. Court records show that the account services department released Mr. Barnes' records, when the loss and prevention department would normally deal with subpoenas. “Why is it a component of the credit union that normally doesn't produce bank records, why are they sending them…it would lead to suppression issues if we could show the bank records were not properly obtained”, added Goodreid. (Case 1:09-cr-00266-CMA Document 272 Filed 08/12/10 USDC Colorado).

“We were very concerned with how the government obtained our banking records”, says David Banks, COO IRP Solutions (quoted from Federal Prison in Florence, Colorado). “The government's activities, and the exposure of those activities during trial, would have allowed us to prove that the government was going to extreme lengths to build a case, but it was at the expense of our basic rights. It was very disturbing when Assistant U.S. Attorney Matthew Kirsch (Denver) stated that, 'Even if the records were improperly obtained', that it was not relevant to our case”, added Banks. “How can an attorney stand in a courtroom and make a statement that condones illegal activity all for the sake of supposedly building a case against someone. Even more disturbing is the fact that Judge Arguello allowed the prosecution to get away with this activity”, Banks concluded.

“In the news we have heard about Wiki Leaks, Edward Snowden, the use of National Security Letters, the NSA's PRISM project, Aaron Swartz and similar cases”, says Gary Walker, CEO IRP (quoted from Federal Prison in Florence, Colorado). “With all of the issues in the news regarding surveillance of U.S. Citizens, it makes you wonder if the government didn't use some of those tactics in our case to create the illusion that something was going on when nothing was going on”, adds Walker.

Court records show that Assistant U.S. Attorney Kirsch argued that the defendants' grounds for suppression and the ability to formulate a defense strategy did not outweigh grand jury secrecy. “There is no Fourth Amendment grounds for suppression because the defendants don't have any reasonable expectation of privacy in business records that are held by a third party”, said Assistant U.S. Attorney Matthew Kirsch during a 2010 hearing. “Part of what is confidential about the subpoenas, themselves, is the manner in which the government makes the requests for these materials; that revealing the subpoenas would reveal part of the tactics by which the government conducts its investigation,” said Kirsch. “But I think that this is the first – granting this motion is the first step down a slippery slope”, said Kirsch. (Case 1:09-cr-00266-CMA Document 272 Filed 08/12/10 USDC Colorado)

Court records show that unbeknownst to a grand jury, some of the banking records were obtained as early as 2003. Fax header date time stamps are prevalent on some of the records. “It is very odd that Agent John Smith would testify to a grand jury that he had obtained banking records. Banking records which the grand jury would have authorized by their subpoena powers but in this case they knew nothing about them”, ponders Banks.

“I recall FBI Director Mueller testifying before the Senate Judiciary committee regarding the abuse on the part of the FBI in the use of NSLs (National Security Letters)”, recalls Banks. In 2008 CNN News conducted a follow up to a 2006 report showing that the Inspector General conducted an investigation into the FBIs use of NSLs and found “systemic failures by the bureau in its use of the letters” (CNN: http://www.cnn.com/2008/POLITICS/03/13/fbi.nsl/index.html). The 2008 CNN report went on to show that Senator Patrick Leahy (D-Vermont) stated that the report on NSLs, “outlines more abuses and what appears to be the improper use of national security letters for years in a systemic failure throughout the FBI”. “I wonder if (Agent) Smith used a NSL to get our records? The alleged FBI NSL abuses occurred between 2003 and 2005, so it stands to reason that since our situation occurred during this time period, and in the absence of subpoenas, an NSL is a viable consideration”, concludes Banks.

“The court record shows that even Judge Arguello originally said that there is a right to privacy and that we should be granted the information related to the subpoenas, but then she came back and ruled against us”, says David Zirpolo, IRP6 (quoted from Federal Prison in Florence, Colorado). “It upsets me to see how the (judicial) system can work against you”, adds Zirpolo.

“When one considers what has come out recently in the news and then you look at what happened in the IRP case, it makes one wonder if the FBI didn't use the USA PATRIOT Act, or some other provision, to illegally obtain banking records of the IRP6 and their friends and families”, says Sam Thurman, A Just Cause. “When you examine how a National Security Letter can be used, it raises serious questions about what might have happened in the IRP6 case. A Just Cause is assisting the IRP6 by requesting that DOJ and the Congressional Judiciary committee conduct an investigation into this entire matter. There are far too many perceived improprieties in this case to go ignored”, adds Thurman.

Court documents show that the Internal Revenue Service (IRS) participated in at least part of the investigation of IRP6 (which included obtaining banking records of the church, several of its members and its Pastor). Board members and parishioners of The Colorado Springs Fellowship Church responded to the action of the government by filing a tort claim with the Department of Justice (DOJ) Civil Rights Division. According to documents filed with the DOJ, the church believes that the IRS violated IRC section 7611 when it obtained church banking records without a subpoena. IRC 7611 states that when the IRS conducts an audit of a church's records, written notice must be given. A church is then given “reasonable” time to respond. If a church does not respond, a second notice is issued within 90 days. After the second notice, but before an audit, a church can request a conference with the IRS. Examination of a church's records must be completed within two years from the date of the second notice from the IRS. (http://www.irs.gov/pub/irs-pdf/p1828.pdf).

Court records substantiate that the IRS participated with the FBI in obtaining financial records of The Colorado Springs Fellowship Church and several of its members. There are no records of subpoenas or court orders to obtain such bank records. In a response to local ABC television affiliate KRDO, U.S. Attorney (Denver) spokesperson Jeff Dorschner stated on behalf of Assistant U.S. Attorney Matthew Kirsch, that the church was not the target of an investigation (KRDO-TV, Colorado Springs, June 6, 2010). A Just Cause questions the motives and authority by which the FBI and the IRS probed into the banking records of the Colorado Springs Fellowship Church (and its members) without subpoenas or following IRC 7611, if the church was not the target of an investigation.

The Right to Financial Privacy Act (RFPA) (12 U.S.C. § 3401 et seq.) is a United States federal law that gives the customers of financial institutions the right to some level of privacy from government searches. Before the Act was passed, the United States government did not have to tell customers that it was accessing their records, and customers did not have the right to prevent such actions. The Act came about after the United States Supreme Court held, in United States v. Miller, 425 U.S. 435(1976), that financial records are the property of the financial institution with which they are held, rather than the property of the customer.

The USA PATRIOT Act of 2001 changed certain provisions of the Right to Financial Privacy Act with the implementation of the National Security Letter. A national security letter (NSL) is a demand letter, which differs from a subpoena. It is used by U.S. government agencies, mainly the FBI, when investigating matters related to national security. It is issued to a particular entity or organization to turn over records and data pertaining to individuals. NSLs contain a gag order, preventing the recipient of the letter from disclosing that the letter was ever issued. The gag order was ruled unconstitutional as an infringement of free speech in the Doe v. Gonzales case, but this decision was superseded by the Second Circuit Court after the USA PATRIOT Improvement and Reauthorization Act gave recipients of NSL gag orders recourse in court. On March 14, 2013, Judge Susan Illston of Federal District Court in San Francisco struck down the law establishing NSLs, writing that the prohibition on disclosure of receipt of such an order made the statute “impermissibly overbroad” under the First Amendment. (Doe v. Gonzales, 2005 U.S. Dist. LEXIS 19403 (D. Conn. Sept. 9, 2005 and United States District Court for the Northern District of California, IN RE NATIONAL SECURITY LETTER No. C 11-02173 SI, Order Granting Motion to Set Aside NSL Letter, http://www.wired.com/threatlevel/2013/03/nsl-found-unconstitutional/ )

For additional information regarding IRP6 visit. http://freetheirp6.wix.com/freetheirp6#!court-transcripts

The case of IRP Solutions (IRP6) is currently under appeal (US District Court for the District of Colorado, Honorable Christine M. Arguello, D. Ct. No. 1:09-CR-00266-CMA; Case Nos: NO. 11-1487, Case Nos. 11-1488, 11-1489, 11-1490, 11-1491 and 11-1492). For more information about the story of the IRP6 or for copies of the legal filings go to http://www.freetheirp6.org

For the original version on PRWeb visit: http://www.prweb.com/releases/2013/7/prweb10891861.htm

Source: prweb

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