Fighting the US DoJ and the VA in Two Courts at Once

On Monday, June 25, Vietnam-era veteran Keith Roberts who is serving 48 months on trumped-up charges of federal wire fraud received some good news.

In Roberts’ case before the U.S. Court of Appeals for Veterans Claims (CAVC) (Roberts v. Secretary of the VA (05-2425)), Roberts had just been granted a motion to add to the record an important supplemental brief.

But Roberts is fighting his legal battle not just against the Department of Veterans Affairs (VA), but also the U.S. Department of Justice in two different courts and two different cases simultaneously on the same factual and legal dispute.

On Friday, June 29, Roberts is filing his criminal brief before the U.S. Court of Appeals for the Seventh Circuit (U.S. v. Roberts, U.S. District Court for the Eastern District of Wisconsin, Docket 05-CR-118).

The reason: In 2005 Roberts' VA case file was seized by the regional VA Inspector General’s Office (after Roberts complained and accused the VA of fraud) and handed off the file to US Attorney Steven Biskupic who then (exercising an appalling lack of prosecutorial discretion) indicted Roberts on mail fraud and then wire fraud on matters of fact that had not yet been adjudicated in the arduous VA claims process known for its high remand (sending back) rate of veterans’ claims cases.

Roberts would have been wise in retrospect to not accuse the VA of fraud, because they took retribution against him and found a willing US Atty in Stephen Biskupic.

Among the main criminal charges against Roberts by the DoJ are that he fabricated his role in trying to rescue fellow Airman Gary Holland, crushed to death in a gruesome C-54 aircraft accident in 1969, and lied about his friendship with Holland that constituted wire fraud, both charges demonstrably untrue, and charges on which US Atty Biskupic’s office won a conviction.

But administrative law regulations (Title 38 Code of Federal Regulations) dictate that a veteran has the right to appeal adverse decisions on his VA claim through the VA processes, and not suffer the effects on a legal end-run around the VA processes.

Reads Roberts' appellate motion (that was granted) before the U.S. Court of Appeals for Veterans Claims (CAVC).

“The plain reading of the statutes as found in Title 38 of the United States Code and their related regulations leave no doubt that the intent of Congress was that veterans not be forced to defend themselves simultaneously in two federal judicial forums. … As a result of the failure of the Secretary to comply with his own rules and regulations Mr. Roberts was prosecuted for wire fraud for receiving electronic fund transfers of his monthly VA payments for service connected disability. As detailed in the brief supporting this motion, the conduct of the Secretary has been contrary to law, in bad faith, highly adversarial and raises the inference of impropriety by a number of senior officials in the U.S. Department of Veterans Affairs. ...

"The Appellant was subjected to administrative actions artfully tailored to deny him due process in the loss of a property right, his disability benefits. He did not realize thathe was also being dragged into a vortex of VA action for which he could, and did, suffer a loss of liberty."

While Roberts sits in a federal prison in Minnesota serving his 48-month sentence, his fight will continue while the same factual and legal dispute remains pending before two Courts.

Said a member of Roberts’ defense team: “We do not believe that Congress intended that a veteran defend himself in two forums at the same time. The U.S. Court of Appeals for Veterans Claims and the U.S. Court of Appeals for the Seventh Circuit will have to sort out the mess the VA and the Department of Justice have created here.”


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