Jun 24, 2007

US Atty Biskupic and VA Defied US Law to Convict Wisconsin Veteran

Airman Keith Roberts - 1970
by Michael Leon

Madison, Wisconsin—In this Karl Rove/Dick Cheney age of politics when the governmental machinery is so politicized that Richard Nixon seems a progressive reformist by comparison, it’s not surprising to find the United States Department of Justice ravaging a Vietnam-era veteran diagnosed with Post Traumatic Stress Disorder (PTSD).

But many veterans charge the peculiar case of US v. Roberts is a disgraceful miscarriage of justice even by the contemporary swift-boating standards of the Bush administration.

Post Traumatic Stress Disorder (PTSD)

In June of 1999, Airman Keith Roberts (1968-71) was granted a disability rating by the US Veterans Administration (VA) after a 12-year, excruciating benefits claim process to which the honorably discharged American veteran from the northern town of Gillett, Wisconsin was subjected.

Roberts had been diagnosed with (PTSD) years after he witnessed a fellow airman killed in a gruesome C-54 aircraft crushing death of fellow Airman Gary Holland in 1969 while on “line duty” at a Naval Air Facility in Naples, Italy, and later in the same year was assaulted by the Navy Shore Patrol and forcefully hospitalized.

Roberts believed that negligence caused Holland’s death and that the Navy then covered it up, blaming the dead rookie Holland who could not defend himself.

The Vietnam-era veteran had no idea while he was gathering evidence seeking an earlier retroactive date for his successful VA claim, per the advice of a Shawano (Wisconsin) Veteran’s Service Officer, and jumping through hoop after hoop, that not only were his existing VA benefits in jeopardy but his very liberty was in danger.

“The process of gathering evidence to prove PTSD disability is extremely time-consuming,” said Sen. Barrack Obama (D-IL) on August 10, 2005 at a time when the VA was set to review 72,000 PTSD cases, but backed down under intense pressure from veterans and democrats. “It requires the compilation of medical records, military service records, and testimonies from other veterans who can attest to a person’s combat exposure.”

In fact, the VA claims process is not just time-consuming, but can be so frustrating that many vets quit the process, or (especially those suffering from PTSD) are thrown into fits of rage directed at the VA itself.

Anger is a euphemism for how Keith Roberts now feels about the VA.

Since March of this year, Roberts has been serving a 48-month sentence (and his family financially shattered) for alleged wire fraud purportedly committed in his benefits application process with the VA in an outlandish VA-benefits-turned-criminal-charges case now before the U.S. Court of Appeal for the Seventh Circuit (appellate brief due June 29) which Roberts vows to take to the US Supreme Court, if necessary.

Among the main charges against Roberts are that he fabricated his role in trying to rescue Holland and lied about his friendship with Holland, both charges demonstrably untrue.

Frustration with the VA
Anger, panic and frustration with the VA drove Keith Roberts to phone the VA Inspector General’s office at Hines, Illinois in November 2003 at which time Roberts spoke with one Special Agent Raymond Vasil.

Roberts accused the VA of “fraud” as the VA was in the process of determining the date from which his retroactive disability pay was to become effective. Adjustments and frequent remanding (sending back for reconsideration) of cases are common VA practice.

It’s not hyperbole to say that many veterans have died awaiting appeal of their cases.

Vasil (who has no professional law enforcement and VA benefit adjudication experience) disingenuously told Roberts he would look into the fraud accusation against the VA, but Vasil appears to have had no intention of investigating the VA, but rather investigated Roberts who was making waves at the VA amid his angry accusations.

Throughout the VA investigation the Roberts family was subjected to a smirking, mocking demeanor by Vasil, the man whose investigation formed the basis of the later criminal indictment.

Said one hostile veteran advocate, “A cop Vasil is not, just an idiot with a badge.”

VA Federal Law

Veteran-advocacy groups deride the delivery of health care and disability benefits to our veterans today as just another example of Bush administration incompetence in administering government services and entitlements to which it is ideologically hostile, a la FEMA and disaster relief.

The VA, a large department of government growing under the strain of war and non-existent administration planning for the consequences of war, is operating under the authority of specific federal statutes—Code of Federal Regulations (CFR), Title 38, “Pensions, Bonuses and Veterans Relief.”

Title 38 specifically defines and delineates the processing and delivery of VA benefits.

In fact, Title 38 (3.901 Fraud) also specifically defines “fraud” (what Roberts is accused of engaging in) as a false or fraudulent act committed in trying to obtain “any claim for benefits under any of the laws administered by the Department of Veterans Affairs … “

But Keith Roberts was never accused of committing VA fraud, per se.

Roberts’ voluminous C-file, or claims file, well documents Roberts “stressors” that led to his being granted disability benefits—rendering accusing Roberts of VA fraud out of the question, so the offended Special Agent Vasil swiftboated the veteran Roberts.

“Keith Roberts was granted a 100% compensation rate for PTSD from his date of claim. To grant PTSD, we need both a) a current diagnosis and b) a verified in-service stressor. We found not only a stressor, but an in-service diagnosis for Airman Roberts,” said a source at the Clement J. Zablocki VA Medical Center in Milwaukee who e-mailed the Lee Rayburn radio show in Madison after a broadcast of a show on Roberts.

In other words, to an experienced and objective VA civil servant, Roberts’ claim was an air-tight.

But Roberts was to become a cautionary tale for Vietnam-era veterans who apply for PTSD disability benefits and carp about the slow and often hostile nature of the VA bureaucracy after Special Agent Vasil’s investigation of Roberts in an as yet unknown manner came to the attention of the US Department of Justice and US Atty Stephen Biskupic (Eastern District of Wisconsin).

Biskupic, not known for his prosecutorial discretion and hungry to augment his win/loss record, took over the case and secured criminal indictments against Roberts in 2005.

Special Agent Raymond Vasil

After Roberts contacted the VA Inspector General’s office and spoke to Vasil, Vasil reportedly became upset with Roberts making the fraud accusations and seized Roberts’ VA claims file from the VA regional office in Milwaukee, according to a document in Roberts’ VA file dated Dec. 12, 2003.

What appears to have transpired is that Roberts hounded the VA to distraction and when he accused the VA of outright fraud, Vasil retaliated against this Vietnam-era veteran for seeking retroactive PTSD-related disability benefits—occurrences by Vietnam-era veterans that are also politically unpopular with the American Enterprise Institute and the Bush administration.

It is in this context that Roberts was reportedly argumentative and insulting to the VA, accusing the VA of fraud.

“[T]he only reason Airman Roberts was ever prosecuted was because he was a ‘belligerent ass’ who kept insisting that he get paid back to discharge. He was demanding an appeal in Washington,” said the source at the Clement J. Zablocki VA Medical Center in Milwaukee who e-mailed the Lee Rayburn radio show in Madison in early June about the Roberts affair. “I'd have to say that you guys are TOTALLY (uppercase in the original) right about Roberts' conviction being bullshit ...”

On August 16, 2004, the VA halted the benefits being paid to Roberts based upon Vasil’s investigation; Roberts appealed the decision on September 14, 2004, and was indicted seven months later.

US Attorney Steven Biskupic
As Roberts’ appeal was being adjudicated in the VA, US Attorney Steven Biskupic stepped in and subsequently secured an indictment on mail fraud on April 26, 2005 under Title 18 United States Code 1341 (mail fraud).

But the indictment on mail fraud involved no investigation from the Postal Inspector’s office, as is usual in mail fraud cases.

“Biskupic really pissed in someone’s pool when he indicted on mail fraud with no investigation from the Postal Inspector,” said a source close to the Roberts’ defense network.

Without explanation from Biskupic’s office, the mail fraud indictment was superseded some four months later in September 2005 when Biskupic secured an indictment on wire fraud under Title 18 USC 1343; this time with no input from the FBI or US Treasury Department, as is usual in wire fraud indictments.

The only law enforcement agency used in the investigation was the VA Inspector General’s office, not a professional law enforcement agency, but an office that operated vindictively in the person of Special Agent Vasil and was run at the executive level by Secretary Jim Nicholson, a former Republican National Committee chairman with no veteran advocacy experience, in an administration taking its cues from the veterans’ benefits-hostile American Enterprise Institute scholar, Dr. Sally Satel.

Title 38 Code of Federal Regulations, Section 3.905 (a) Jurisdiction)

The VA insulates and protects veterans by establishing a layer of procedure before a veteran can be denied VA benefits, much less criminally prosecuted for fraud in seeking benefits.

The Title 38 Code of Federal Regulations, section 3.905 (a) Jurisdiction) statute reads: “At the regional office level … the Regional Counsel is authorized to determine whether the evidence warrants formal consideration as to forfeiture.”

Robert Walsh, the appellate attorney for Roberts and a former VA staff attorney, blasted the criminal prosecution as well as the VA denial of benefits for its lack of review by VA counsel, per Title 38.

"The local VA Inspector General going directly to the U.S. Attorney without any review by VA attorneys appears to be unprecedented and is a violation of (Title) 38 Code of Federal Regulations, section 3.905.

“The U.S. Attorney prosecuting a case such as this without a proper investigation by the F.B.I. or U.S. Treasury is outrageous. It is contrary to the Department of Justice guidelines for such cases. Failure to follow those well-thought out procedures is unwise. So we arrive at this bizarre outcome.

“When Congress passed the Veterans Judicial Review Act which became law in 1988 they created a special court to review disputes over veterans’ benefits, the U.S. Court of Appeals for Veterans Claims (CAVC). No other court was given jurisdiction over these claims, and that court has not yet ruled on the reduction of benefits suffered by Mr. Roberts. If the CAVC rules in favor of Mr. Roberts he will be in prison convicted of fraud for accepting benefits payments that he is fully and legally entitled to."

Biskupic has not spoken publicly on why his office had not awaited the adjudication of the benefits process before seeking indictments for alleged fraudulent statements made by Roberts in his claims, and why Biskupic avoided Veteran Fraud, and indicted on mail fraud and then wire fraud.

Title 38 Code of Federal Regulations, Section 3.905 (b) Fraud

The VA is also required, by federal statute, to notify a veteran if he or she is declared to be fraudulently presenting information to the VA.

The Fraud statute reads:

(b) Fraud or treasonable acts. Forfeiture of benefits under §3.901 or §3.902 will not be declared until the person has been notified by the Regional Counsel … of the right to present a defense. Such notice shall consist of a written statement sent to the person's latest address of record setting forth the following:
(1) The specific charges against the person;
(2) A detailed statement of the evidence supporting the charges, subject to regulatory limitations on disclosure of information;
(3) Citation and discussion of the applicable statute …

Roberts was never notified by the Regional Counsel that he was suspected or accused of engaging in fraud.

Said a source close to the defense network: “The VA statute requires the criminal justice system to stay out of the matter until a FINAL administrative agency decision is in place. That will not happen at the VA until Roberts is done at the Supreme Court. The VA reduction of benefits is under appeal, and will be for some time. So, if they believe in the fraud, why the rush for Biskupic to jump in? Keith is not a killer posing a danger to the public; he is a veteran who simply will not be getting his benefits that he deserves.”

Roberts was caught in a situation where he angered the VA Inspector General’s office which knew that Roberts could never be convicted of VA fraud, so they summarily denied his benefits, and then somehow communicated the case circumstances to US Atty Biskupic who charged Roberts with postal fraud and then with wire fraud using the denial of benefits (under appeal per federal statute) as evidence of criminal fraud.

So before and after Special Agent Vasil was scheming to charge Roberts with fraudulently presenting his VA claim, and Roberts’ liberty became endangered, the VA never notified Roberts through the Regional Counsel or otherwise that his forfeiture was asserted by the VA Inspector General to be based upon fraud.
US Atty Biskupic never addressed the statutory imperative that Roberts should have been so notified by the VA Regional Counsel during the investigation, the indictment and prosecution.

This would appear to raise serious due process considerations that may result in the overturning of Roberts’ conviction by the Seventh Circuit, known for its intellectual heft, though leaning to the right, aside from the fact that Roberts is innocent of not being at the scene of his friend Holland’s death.

Criminal Trial

The criminal proceedings included the misrepresentation of the laws and regulations governing veterans’ disability benefits claims procedures and the military service of Roberts to the jury.

The defense claims that the government withheld hundreds of photographs and documents in their possession from the defense which would have proven that Mr. Roberts did not commit fraud.

Roberts was forced to defend himself in federal court by proving that he was present at his duty station on the flight line in Naples, Italy on February 4, 1969 when Airman Gary Holland was killed while performing maintenance on a C-54 aircraft.

The prosecution produced no witness who testified that Mr. Roberts was not present for duty on that day.

The prosecution produced no witness or document which refuted that the aircraft hanger where Holland was killed was Roberts’ duty station.

Several witnesses testified that general quarters was sounded, as Roberts claimed. The prosecution produced no evidence that Roberts failed to respond to general quarters.

In fact, Roberts received a “Special Enlisted Personnel Performance Evaluation” (the military equivalent of a pat on the back for the then-young airman) two days after the death of airman Holland.

The position of the VA and the US Atty Biskupic is that Mr. Roberts was not present, and therefore his VA disability claim is based on fraud.

“Where were you on February 4, 1969? Can you prove it?” asks Delores Roberts, Roberts’ wife.

Questions for US Atty Biskupic
It is clear that the VA violated its own statuary mandates, but questions remain for the US Atty’s office that prosecuted Roberts.

Did the Secretary of the Veteran's Administration give US Atty Biskupic authorization by delegation of authority to prosecute Keith Roberts before the exhaustion of his administrative remedies under Title 38 CFR?

Did US Atty Biskupic know that the Board of Veteran's Appeals had determined in prior decisions that Roberts' statements could not be used, as a matter of law, to verify a stressor in order to grant service connection for PTSD?

Did US Atty Biskupic know that the VA claim process is supposed to be non-adversarial?

Where in Title 38 does it state that the DOJ can take jurisdiction away from the Veterans' Administration before the VA has completed its review of the veteran's benefits, including the review in the Court of Appeals for Veteran's Claims?

With whom at the DoJ and the VA did Biskupic communicate before arriving at his decision to seek indictments?

Roberts and his family await answers and justice.

Cases to be adjudicated:

· U.S. v. Roberts, U.S. District Court for the Eastern District of Wisconsin, Docket 05-CR-118
· U.S. Court of Appeals for Veterans Claims docket 05-2425
Legal questions and legal comments can be e-mailed to Robert Walsh at: rpwalsh@sbcglobal.net.
Update: A reader's e-mail reads that the District Court stated from the the bench at sentencing that he did not believe that the senseless and negligent death of Naval Airman Gary D. Holland "was a stressor that induced some horrible posttraumatic stress disorder ... "
Right, seeing a friend crushed to death is no big deal.

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