Isaac Culver's Case Was Miscarriage of Justice:
Here's Why
Anyone reading the transcripts of Mr. Culver’s case would reasonably conclude there simply was no fraud. Any reasonable person would simply conclude this was a business deal gone bad.
The government’s chief witness in this case is a competitor of Mr. Culver’s business. We don’t know of a business that wouldn’t jump at a chance to testify against their competition. In fact, one of the key pieces of evidence against Mr. Culver is an email sent to his competitor / sometimes teammate, asking him for a reference that he stated he would provide. As we have done ourselves on numerous occasions, Mr. Culver wrote the reference and asked that Mr. Stephens to endorse it. He plainly stated that the reference was made up for Mr. Stephen to change as he saw fit. As the emails show, Mr. Stephens did not return the reference back to Mr. Culver; but rather to another PCTI employee who was working on the RFP response. We have asked numerous attorneys; none can cite a law against providing a bad reference. Especially when the two parties are working together doing similar work and both agree to provide the reference.
Mr. Culver is a man who has never in 30 years been before a court in a civil or criminal matter. He has never even been sued before. On the other hand, the aggrieved party, BCSD, has more lawsuits each year than any other party in middle Georgia. BCSD has a completely ruinous reputation of following through with policies and procedures. During the time period in dispute, according to their own auditors, they had Fifty-Two vendors working in the district without written contractual agreements.
The main point that any reasonable person should have taken away from Mr. Culver’s and PCTI’s trial was the testimony of the government’s own witness when he stated during trial, “These devices are amazing!” He installed over 4,000 of them six years ago during the 2012 time period and still uses nearly half of them today.
Couple this with the testimony of two former principals from BCSD where PCTI installed L300 devices in their schools. One stated that students were literally fighting over who would get a chance to use the devices because they were so well received. The other stated it was overwhelmingly beneficial for his students, teachers and himself!
How do you sale someone a fantastic product at a fantastic price then be accused of fraud six years later when they choose not to use it?
What happens when a civil contract dispute becomes a criminal matter?
https://wp.nyu.edu/compliance_enforcement/2016/05/25/breach-of-contract-%E2%89%A0-fraud/
"The Court of Appeals was right to reject the verdict. Fraud requires an intentional misrepresentation of fact. Breaches of contract, even if intentional, are not misrepresentations of fact.
What is distressing about the government’s decision to press this dubious lawsuit is the dangerous breadth of the underlying legal theory. Breaches of contract become frauds; frauds become crimes; crimes become predicates for RICO actions, and sooner or later ordinary commercial conduct is regulated through the lens of the criminal law.
Our legal system already incorporates an effective set of remedies for breaches of contract. Converting contract breaches into frauds would threaten to disrupt that system of regulation, impose unwarranted liability on innocent parties, and harm the public welfare by undermining incentives for efficient behavior.
The Second Circuit’s opinion appropriately rejected the government’s attempt to criminalize breaches of contract. Possibly, also, the opinion reflects a belief on the part of some jurists that meaningful judicial review is needed in order to counterbalance the awesome powers conferred on prosecutors and regulators in the modern administrative state."
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The overarching tenet of any fraud case is that someone must be asked to "hide" something.
The evidence shows that PCTI never asked CompTech or anyone else to hide from BCSD that they were the provider of the NComputing devices. In fact, PCTI employees installed the pilot devices in the schools wearing PCTI logo shirts.
There was simply nothing hidden. Emails from PCTI employees and Mr. Culver to CompTech demonstrated a willingness to work on delivery of the devices to BCSD using the established Prime - Sub arrangement between PCTI and CompTech nothing more.
The GSA schedule 70 is an agreement between government agencies.
The vendors listed on the schedule have very little input into the process and absolutely no control over the purchasing of items using this contract.
A third party, like PCTI, has no input whatsoever. The purchase was between BCSD and CompTech uisng the U.S. Government's GSA schedule 70.
Although the prosecutor contends that PCTI used the GSA schedule in a fraudulent manner the facts belie that:
First, as stated above a third party has no input in the process.
Second, using the GSA schedule was the idea proposed by BCSD to avoid bidding and not PCTI,
Third, PCTI had never used the GSA schedule 70 either but the prosecutor contends they were the "expert" and mislead CompTech.
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Why the indictment was changed at trial?
Among other asinine charges, the indictment actually specifies that the defendants were not able to make a profit for their services (Page 5 - Item 3): Click on the link below.
https://www.justice.gov/file/973451/download
The prosecutor repeatedly states during trial, "this is not a contracts case" then proceeds to quote paragraph after paragraph from the RFP/RFQ documents.
Going so far as to have a former contracts officer from BCSD as a witness to state what she "expected" from the contracts.
See Second Circuit’s opinion above why this is a dangerous practice for any court.
Mr. Culver may very well be the first instance of an individual sentenced in the United States for Breach of Contract. In fact, the government inserted their own clause into the legally executed contract between PCTI and BCSD from six years earlier,
"What BCSD expected was an arm’s length transaction by an independent project manager."
No where in the services agreement between PCTI and BCSD (See Exhibit 1) is there such a clause.
Using this newly formed clause, the government then asserts that PCTI was not allowed to be the vendor.
Again, no where in the services agreement between PCTI and BCSD is there such a clause.
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Parlor Tricks
Mr. Culver's 5th and 6th amendment rights were violated. Only in extraordinary circumstances does a defendant waive his constitutional rights... Never unwittingly...
In fact, it is a legal axiom that the judge notify the defendant that his rights are being waived by the actions taking place and furthermore; to ask the defendant if he is in agreement with this waiver.
The 5th amendment concerns the right to be tried only upon those things charged in the indictment by the grand jury.
Mr. Culver's was told his counsel waived his 5th amendment rights at trial as the indictment was modified at trial.
The 6th amendment concerns the right to cross examine your accuser.
Mr. Culver's was told his counsel waived his 6th amendment rights also so the government could use the civil deposition of a deceased individual against him.
We suppose using this new found legal opinion, Mr. Culver's counsel could also waive his right to be a U.S. Citizen?
All of this with counsel that filed a motion with the court stating he couldn't represent Mr. Culver effectively due to the court's decision to the let the prosecutor separate the defense legal team 3 days before trial as well as informing the court that Mr. Culver’s lead counsel was extremely ill.
More to come!