DoJ Memo Conflicts with Biskupic at Oral Arguments

A U.S. Department of Justice memo (Page one pictured at right) (Nov, 16, 2006) contradicts U.S. Attorney's Stephen's Biskupic's statements made at oral arguments in the case of the United States v. Keith A. Roberts ( 07-1546) before a three-judge panel of the Court of Appeals for the Seventh Circuit last week.

Keith Roberts, a Wisconsin Navy veteran (1968-71), while in the middle of adjudicating his claim for PTSD-related disability benefits with the VA, was in an extraordinary turn of events investigated, charged and convicted of wire fraud by U.S. Attorney Stephen Biskupic (Eastern District of Wisconsin) after Roberts had phoned the VA Inspector General’s office at Hines, Illinois, in December 2003 and complained to Special Agent Raymond Vasil that Roberts believed that the VA was engaging in “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 Roberts' retroactive PTSD-related disability pay was to become effective, among other benefit issues).

Roberts’ benefits claim, related to his PTSD, was diagnosed as occurring because of the in-service stressor event of witnessing and trying to prevent his friend (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, and an unrelated assault by the Navy Shore Patrol, and was granted at the 100 percent disability level in 1999.

That award of benefits was then illegally rescinded and that action by the VA is now under review by U.S. Court of Appeals for Veteran Claims (CAVC).

At oral arguments, Biskupic stated "There was evidence from the people that were (at the Naples, Italy air base) there in 1969 that this defendant lied about what his role was, and there was testimony that those lies were relied on by the government in awarding (his disability benefits) ... ," said Biskupic.

[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.] ]

The 2006 government memo tells a different story. There was no such evidence presented by the mentioned veterans that the "defendant lied," about his role.

In fact, those veterans could not even say either way whether Roberts was even at the scene (a likely occurrence in recall as the Navy air base equivalent of a general quarters alarm was sounding and the scene was chaotic as an air man was being crushed to death by the C-54 aircraft), according to the prosecution's own memo.

Memorandom
Date: November, 16, 2006
Subject: Prosecution Version of the Offense
United States v. Keith A. Roberts
Case No: 05-CR-118
TO: Mitchell Fara, U.S. Probation Officer
Jeffrey Jensen, Attorney for Keith A. Roberts
FROM: Timothy W. Funnell, Assistant U.S. Attorney

The U.S. Attorney's memo reads (p.8) :

"To prove that Roberts misrepresented his role in the Holland rescue attempt, the government produced eight Navy veterans, seven of whom were at the scene of Holland's accident and one of whom was Holland's close friend on the base. The seven veterans on the scene could not say whether Roberts was at the scene or not ... "

At Orals, Biskupic told the Court: You have to be truthful, that’s what this case is about.

At Orals, Biskupic describes the testimony of the seven veterans (who could not say (recall) as the memo points out): "There was evidence from the people (the veterans) that were there (at the Naples air base) in 1969 that this defendant (Roberts) lied about what his role was ... "

Biskupic referenced the veterans' testimony again during orals in response to a Judge's question.

But, as the memo says, the vets said they did not know and could not recall, certainly not the basis for presenting testimony as evidence in this matter, as Biskupic did.

What lies did Roberts tell that the veterans' (who could not recall) testimony pointed to?

Some 35 years after a chaotic event where someone was killed, Biskupic would have the Seventh Circuit believe that there was evidence presented by the veterans that Roberts lied about being present at and what he did at the scene (though Roberts was on line duty and 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), though his own memo shows the prosecution's witnesses, the veterans, could not recall.

No veteran could place Roberts anywhere else than beyond where he was assigned on line duty.

That's not a truthful address to the Seventh Circuit by Biskupic.

E-mail records obtained by the defense show that top VA officials planned this extraordinary prosecution with Biskupic, though the VA claims process is supposed to be claimant-friendly and non-adversarial, per the federal Veterans Judicial Review Act.

To recap: Biskupic told the Seventh Circuit's panel of the seven Navy veterans who could not recall seeing Roberts at a chaotic scene (contra the prosecution's memo that reads "...seven veterans on the scene could not say whether Roberts was at the scene or not...") that the veterans' testimony placed Roberts somewhere else beyond the death scene, by virtue of Biskupic's contention that Roberts lied about where Roberts said he was.

Said Roberts' attorney Robert Walsh at Orals:

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 . 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)?

Good question.
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