- Accessing oral arguments. [Enter 07-1546 in the Case Number's fields by entering 07 in the "Year," and entering 1546 in the "Year Fragment's" field. Give the file some 45 seconds at least to load.]
Navy veteran Keith Roberts (1968-71) is serving a four-year sentance for wire fraud for trying to help save his buddy, Florida native Airman Gary Holland, from being crushed to death by a C-54 airplane while stationed at a Naval air base in Naples, Italy in 1969. The government says he lied, and that his diagnosed Post Traumatic Stress Disorder (PTSD) is based on lies.
Roberts is appealing.
Using one’s perceptions of the ideology, judicial integrity and past rulings of a three-judge panel as a means of predicting a ruling on a criminal appeals case is akin to a 16-year-old guy guessing the outcome of a first date with a 16-year-old girl: Conjecture seems a useless enterprise, and surprises and unpredictability are the rule.
But I’ve learned a lot about women and judges since being a teenager.
In the matter of Keith Roberts v. United States (case number 07-1546) appearing for oral arguments before a panel of the Court of Appeals for the Seventh Circuit yesterday, I am cautiously optimistic that the conviction of the Wisconsin Navy veteran on five counts of wire fraud in 2006 will not stand.
One could offer a multitude of qualifications, but based on my reading of the briefs and the relevant administrative, case (cited by government and defendant briefs) and statutory law, Roberts has a strong case. [I ought to state my bias here against U.S. Attorney Stephen Biskupic who argued the Roberts case himself at oral arguments, for whom I harbor ill feelings for his obscene prosecutions of the innocent Georgia Thompson and the ridiculous voter fraud cases. In fairness, Biskupic is known by many in the legal field as a gentleman, although one who had a bit too much time on his hands at the office where ambition appears to have overtaken discretion.]
The defendant's case before the three-judge panel was argued by attorney Robert Walsh, a former VA staff attorney, who is also the attorney arguing Roberts' case involving the same transactions and occurrences before the Washington D.C.-based U.S. Court of Appeals for Veterans' Claims (CAVC).
A decision favorable to the defense would represent a stunning blow to the Bush administration’s policy on veteran’s PTSD benefits, that has sought to marginalize veterans contending that veterans are to some extent responsible for their own conditions in that they had pre-existing personality disorders and, some administration figures have asserted, a lack of faith in God that would have assisted coping with PTSD.
A favorable defense decision would also likely draw the attention of the House Committee on the Judiciary that has been investigating selective and politically motivated prosecutions by the Bush Department of Justice.
Roberts was diagnosed by numerous government and private medical professionals as suffering from PTSD, for which the stressor event is contended by Biskupic to have been fabricated, constituting fraud.
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 Special Agent Raymond Vasil.
Roberts accused the VA of “fraud” in altering a transcript at a local hearing in the VA Regional Office in Milwaukee as the VA was in the process of determining the date from which his retroactive disability pay was to become effective, among other benefit issues.
At oral arguments Walsh knocked down that government's contention of fraud, arguing a lack of intent and asserted that only after Roberts' complaint of fraud was made did the VA look for inconsistencies in the veteran Roberts' VA claim file.
Walsh also asserted a cover-up of negligent conditions at the Navy air base that caused Airman Gary Holland to be crushed to death by a C-54 aircraft.
Following is an extended excerpt from Walsh's address yesterday that was interrupted just once with a question pertaining to Roberts' state of mind.
Look back here for an analysis of U.S. Attorney's Biskupic's address on Monday.
Said Walsh:
Nothing that a veteran says is going to be the basis of a PTSD award of benefits by the VA. They need a medical diagnosis and they need a verified stressor, and I have never seen, it's a total distortion (of VA adjudication procedures) in this (and made at the trial court) record, and any suggestion that any veteran can (hypothetically) just walk into the VA, file a claim and say, you know peace-time veteran, that 'I was here in the states and I was sexually assaulted and it's stressful and give me money'. And the answer is did you tell the Chaplin? Did you go the hospital? Did you confide in a family member? Do you have a contemporaneous letter? Do you have documentation?
‘No, I was embarrassed’. Then, the claim fails. Your own statement, no matter how compelling the argument and how tragic the circumstances is not going to be the basis of an award of PTSD.
Now, the VA adjudicated this, with all the King's horses and all the King's men for about 10 years. They conclude that this man has PTSD. They grant the award. And now they decide, after he's a whistle blower and he complains to VAIG (Department of Veterans Affairs Inspector General) (in November 2003). Now they decide that they are inconsistencies in the record. I submit to you that they are inconsistencies in every veteran's record, combat or peacetime. And that Congress has recognized that.
And that’s why VA benefits is a very paternalistic, claimant-friendly, non-adversarial system. It’s even more paternalistic that the Social Security benefits adjudication system (per the Veterans Judicial Review Act).
So, where’s the intent (for fraud)? The intent is to get some benefits because the man (the veteran) can’t work. Now, as far as wire fraud, when Congress changed the law and suggested that electronic funds transfer would be a permissible vehicle for pain (disability) benefits across the government, they made it elective. In the Social Security administration it was elective … VA general counsel in 1997 issued a(n) … opinion … (mandating) that everyone is going to have electronic funds transfer. ... every VA beneficiary … (is compelled to receive benefits electronically). …
This (case) is a remarkable event because we have the interposition of the Department of Justice right square in the middle of a VA benefits dispute, and effectively they (the DoJ) are litigating in the district court the same transaction and occurrence (as the VA).
And they (the DOJ) (said) ‘no, we’re not going to do that’ (at trial). The judge’s pre-trial motions and pre-trial conference were all predicated on the fact that I am not going to relitigate the veteran's (VA) benefit case. And then they proceed at trial, after they’ve denied many of the witnesses that Mr. Roberts attempted to call, they proceed to relitigate the 1969 events.
Now, they (the prosecution) also call for their witnesses, the individuals, the officers, the non-commissioned officers, who were in charge of the maintenance of that aircraft and who negligently removed the jacks, creating a situation which led to the unnecessary and accidental death of airman Holland.
And now to bring those people in, by the way who then retired from the military. So they have pecuniary (direct financial interest because of pension and other VA benefits) interest in the outcome of this case, having been subpoenaed in the court; they have to stick to their story that Mr. Holland caused his own death. He did not. (Prosecutor’s witness) Chief Stewart testified that the airplane was safe.
Res ipsa loquitur (the thing speaks for itself), the aircraft was not safe; it collapsed and killed a young man.
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