Update VI: Walsh attacked the “lack of intent” by Roberts. Intent is needed to prove fraud.
Walsh also pointed out that Roberts was diagnosed by numerous medical professionals with PTSD.
Walsh attacked the prosecution’s relying on the statements of the veterans when VA procedure stresses documentation and not personal recollection as the dispositive factor in deciding cases.
The VA needs a medical diagnosis and verifiable stressor and not a recollection, and a recollection is virtually irrelevant in the VA's deciding PTSD cases.
Thus personal recollection, often imperfect, ought not cause a veteran to be accused of fraud, asserted Walsh.
Walsh also objected to the DoJ injecting itself into the VA claim processing as a claim was still being processed. Argued Walsh: “This 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.
"And they (the DOJ) say ‘no, we’re not going to do that.’ The judge’s pre-trial motions and pre-trial conference were all predicated on the fact that I am not going to litigate the veteran's benefits case. (And the the DOJ proceeds to do exactly that.)”
Update IV:
U.S. Attorney Stephen Biskupic himself argued the case before the panel. Biskupic is under heavy heat for the Georgia Thompson travesty, and a slew of ill-advised voter fraud prosecutions, and he trusts no one else on this case that is becoming the focus of increasing national attention.Update III: The 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).
See http://www.ca7.uscourts.gov/fdocs/docs.fwx?dname=arg to access oral arguments; case number is: 07-1546.
Update II: Oral arguments are now available, thanks to the efficient work of the Clerk of Courts personnel for the Court of Appeals for the Seventh Circuit. See below.
Update: Court clerk said oral arguments in U.S. v. Roberts (07-1546) have been completed this morning in Chicago.
Internet access is expected at approximately (2:30 central time) at:
http://www.ca7.uscourts.gov/fdocs/docs.fwx?dname=arg
Just enter 07-1546 in the Case Number's fields by entering 07 in the "Year," and entering 1546 in the "Year Fragment's" field. Check back more updates as I hear from observers.
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Oral arguments will be held today appealing the criminal conviction for wire fraud of Navy veteran Keith Roberts (1968-71) before a three-judge panel of the Court of Appeals for the Seventh Circuit.
Roberts simultaneously awaits the U.S. Court of Appeals for Veterans Claims’ (CAVC) decision on his VA disability case, litigating the same set of facts before two judicial forums.
As Post Traumatic Stress Disorder (PTSD) claims skyrocket, if Roberts’ criminal conviction and denial and reduction of benefits stand, veterans who have PTSD disability cases pending in the VA are theoretically in legal jeopardy, if they cannot prove all aspects of their claims. [Though the previous statement ought to be qualified that not all U.S. Attorneys would dare prosecute veterans in the same circumstances as U.S. Atty Stephen Biskupic (Eastern District of Wisconsin) did, to the disbelief of much of the veterans' community.]
Roberts’ argument for reversing his conviction will likely be lack of evidence presented at trial to convict, and the following as quoted from his reply brief.
The District Court Erred in Denying the Appellant's Motions to Dismiss, as the Court's Exercise of Jurisdiction Constituted a Denial of the Appellant's Right to Due Process, Due to the Pending Appeal Before the United States Court of Appeals for Veterans Claims.
Translated, the argument contends that the VA regulations ought to have been followed before a criminal indictment was even contemplated, and that administrative law processes ought to have been exhausted.
This is identical to the argument made in Roberts' brief to the Washington D.C.-based U.S. Court of Appeals for Veterans' Claims (CAVC)
In the CAVC brief, Roberts argues:
The Secretary has caused a criminal prosecution in Federal District Court to be initiated against the Appellant while he was still before this Court (CAVC) litigating the same facts, transactions and occurrences. The VA regulation for initiating criminal charges against a veteran was not followed, (Title) 38
C.F.R. § 14.561.
Roberts’ VA claim for his diagnosed PTSD is related to his trying to 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 VA and U.S. Attorney claim that Roberts lied about his role at the death scene (though he was stationed there) and that he lied about being friends with Holland, though the two trained and arrived in Naples together. [An analysis obtained from Roberts wife, Deloris Roberts, of the service histories of Gary Holland and Keith Roberts reveals parallel military careers that would make it unlikely that Holland and Roberts were not at least friendly in their relationship, and that contradicts the prosecution’s indictment and trial statements. A previously published piece on that analysis is posted below this piece.]
Title 38
The Title "38" reference in Roberts' brief pertains to the Code of Federal Regulations (CFR), Title 38, “Pensions, Bonuses, and Veterans Relief, administrative law regulations regarding veterans’ benefits which have the legal force of federal law.
The VA insulates and protects veterans by establishing a layer of procedures before a veteran can be denied VA benefits, much less criminally prosecuted for fraud in seeking benefits.
For example, the government's failure to abide by Title 38 Code of Federal Regulations, Section 3.905 (a) Jurisdiction will likely be argued by Roberts.
The Title 38 Code of Federal Regulations, section 3.905 (a) Jurisdiction regulation 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 CAVC attorney for Roberts and a former VA staff attorney, had blasted in a brief (some months earlier) the criminal prosecution as well as the VA denial of benefits for its lack of review by the VA Regional 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 the charge of Veteran’s fraud, and indicted on mail fraud and then wire fraud instead.
Nor has Biskupic’s office offered any explanation for why he sought indictments absent review and referral by VA attorneys, per Title 38 Code of Federal Regulations, section 3.905 and why as Roberts’ VA claims continued tobe adjudicated under the veterans’ courts, Biskupic decided to step in and indict without investigation by the Postal Inspector’s office, the FBI, or the U.S. Treasury department.
Veterans’ groups allege that Biskupic’s extraordinary prosecution was consonant with Bush administration priorities to discourage VA disability benefits claims and served to curry favor with the AEI/Bush VA priorities, helping to keep Biskupic’s endangered position as U.S. Atty in Bush’s politicized DoJ.
Below is an earlier piece ripping the government's indictment that pointed Roberts' having fabricated his friendship with Gary Holland, an unusual contention in a wire fraud indictment.
More Dismantlement of Case Against Jailed Wisconsin Veteran
Madison, Wisconsin—An analysis reveals more corroboration of the account of a Vietnam-era airman who witnessed a colleague's death in a gruesome C-54 aircraft accident in 1969 at a Naval Air Facility in Naples, Italy and is now imprisoned for wire fraud.
The crushing death of Airman Gary Holland in the wheel well of the C-54 set in motion a chain of events that 36 years later led the US Veterans Administration (VA) and the US Atty for the Eastern District of Wisconsin in 2006 to indict and convict a veteran, Airman Keith Roberts (1968-71), diagnosed with Post Traumatic Stress Disorder (PTSD), on charges of wire fraud, arguing that Roberts fabricated his role at the death scene and his relationship with Holland, defrauding the VA.Roberts is currently is serving 48 months in federal prison.
The U.S. v. Keith A. Roberts indictment on mail fraud (April 26, 2005) and later superseded by an indictment on wire fraud alleges in part that Roberts in his “(s)cheme to (d)efraud” the VA “falsely represented material information to the VA” including “that Roberts and airman Gary (Holland) were close friends and roommates.”
In fact, an analysis obtained from Roberts wife, Deloris Roberts, of the service histories Gary Holland and Keith Roberts reveals parallel military careers that would make it unlikely that Holland and Roberts were not at least friendly in their relationship, and that contradicts the prosecution’s indictment and trial statements.
Holland and Roberts:
- Took two weeks-long classes together while stationed together in Memphis, Tennessee in 1968
- Were quartered in the same barracks at Lakehurst, NJ where they also trained together for weeks
- Went into the Naval Air Force base in Naples, Italy together as two young airman
- Slept in close quarters (feet away from each other) while at Naval Air Station base in Naples, Italy
- Worked in the same and only base air hangar together
- Took an advancement test together on the morning of the day Holland was killed on Feb. 4, 1969
“I’d say there was a pretty good chance that Keith Roberts and Gary Holland were friends,” said Deloris Roberts. “The prosecution must know this fact.”
Very little exculpatory information was introduced at Roberts’ trial by his court-appointed attorney, and much exculpatory information was not introduced.
VA Policy Under Bush
After being diagnosed with PTSD and granted disability benefits, Roberts had no idea that political and bureaucratic forces allied with VA Secretary Jim Nicholson in 2004-05 were determined to adopt the policies of the rightwing think tank, the American Enterprise Institute (AEI), ultimately resulting in Roberts’ prosecution after Roberts phoned the VA and complained that the VA were engaging in fraud in processing his PTSD disability claim.
Roberts's phone call and accusation of VA fraud sounded the alarm bells at the VA.
Under the Bush administration, the VA is using propaganda to defend a reduction in benefits to veterans with PTSD, and redirect blame towards the troops themselves, often dismissing the PTSD as a mere pre-existing personality disorder, not requiring VA disability benefits, as 100,000s of troops return home form Iraq and Afghanistan damaged and forgotten.
Roberts’ benefits were ultimately cut after his phone call, and U.S. Atty Stephen Biskupic's office used the VA benefits-severed administrative fact as a means of prosecuting Roberts in a criminal process.
Biskupic (was) the enforcer of a new VA policy adopted from the AEI that veterans suffering from PTSD wallow in a "culture of trauma" and do not deserve "entitlements;" and what Roberts attorney calls "a VA culture of claims denial that has turned into a criminalization of the disability claims process."
Roberts remains a warning to other Vietnam-era veterans suffering from PTSD to not file for PTSD benefits.
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