United States Attorney Stephen Biskupic spoke at oral arguments in late October 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 and called the Roberts’ affair “a simple, straight-forward” case.
As Biskupic well knows, the U.S. v. Roberts case is anything but simple and straight-forward.
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).
Biskupic said at oral arguments: “You (veterans) have to be truthful.”
“There was evidence from the people that were 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).
“… so you have a simple, straight-forward wire fraud case that was brought against somebody who lied to the government; witnesses were brought in at the trial to support the evidence that he lied … from our perspective, not unusual, a straight-forward fraud case other than the fact that it litigated an issue from 1969. …”
Roberts’ attorney, Robert Walsh, pointed out at oral arguments that the Roberts’ case has veterans’ advocates shaking their heads in disbelief nationwide.
Said Walsh:
The Roberts matter is a“… very remarkable case … This is a matter of first impression (first presentation of question of law to a court for examination or decision). I have discussed this with probably 30 members of the Veterans Bar. And understand that’s a very small bar.
The organization of veterans’ advocates only has 400 members. … I’m a former VA district counsel staff attorney. I talked to general counsel attorneys, retired and serving. I’ve discussed this with the regional counsel in Detroit, whom I believe should have been in the screening of this case before it went to the U.S. Attorney.
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.
Following is an edited, previously published piece on Roberts demonstrating how the Navy veteran Roberts became a major political and legal Department of Veterans Affairs (VA) and DoJ target.
9/03/2007
National VA Director Pushed US Atty Biskupic to Indict Wisconsin Veteran
Madison, Wisconsin—The Bush administration has refused to prosecute even one case of contractor fraud despite the multi-billion-dollar swindling and war-profiteering scandals in Iraq, but pursues a vigorous enterprise to marginalize, investigate, and prosecute veterans receiving disability benefits in an attempt to fabricate a fraud crisis among veterans who were injured and traumatized during their service to their country.
One administration initiative to investigate 72,000 cases of Post Traumatic Stress Disorder (PTSD) was halted in 2005 after a storm of outrage from veterans’ groups and democrats.
In the PTSD case of U.S. Navy Airman Keith Roberts (1968–71) the U.S. Dept of Justice in the office of the U.S. Attorney for the Eastern District of Wisconsin, Stephen Biskupic, decided to indict a Wisconsin Vietnam-era Navy veteran (who was diagnosed with PTSD by at least five different mental health professionals), using the power of his office to convict and jail the vet on trumped-up charges of wire fraud in 2004-2005.
The case has potentially vast repercussions because if Roberts’ criminal conviction and denial and reduction of benefits stand, every veteran who has a disability case pending in the VA bureaucracy is theoretically in legal jeopardy.
Were the current VA administrative rules allowed to be rendered inoperative and a new standard for benefits claims to be enacted demanding that every veteran must verify beyond a reasonable doubt the circumstances surrounding his disability claim, every veteran claimant could face criminal wire fraud indictments, assuming they resided in a jurisdiction with a US Atty exercising the same lack of prosecutorial discretion as Biskupic.
Exercising this appalling lack of prosecutorial discretion, the U.S. Atty, after prodding from U.S. Dept of Veterans Affairs (VA) officials, drew fire for the bizarre prosecution from veterans’ groups, such as Colonel Daniel K. Cedusky’s, AUS, (Ret.), a critic of both what he calls Bush administration “chickenhawks” and anti-war activists.
Adding insult to injury, the VA also began immediate collection actions against the veteran and his two young daughters who had received education benefits related to their father’s service in the Navy.
Who or what prompted the U.S. Atty’s office is a puzzle to many readers who have followed the case of Airman Keith Roberts who has been serving 48 months in a federal prison since last March, as well as incurring associated costs of some $500,000.
But several VA e-mails point to top officials in the VA engineering a criminal prosecution while gaming the veteran’s VA benefits adjudication, and subsequently putatively financially assaulting the veteran’s family.
Roberts is but one victim of a stacked-against-the-veteran benefits system that is now the subject of an unprecedented class action law suit by veterans of the Iraq and Afghanistan wars, as veterans’ PTSD claims surge.
But Keith Roberts is indisputably a major political and legal VA target.
Roberts’ difficulty began as he hounded the VA to distraction over his claim for an earlier effective date for his disability benefits. When he accused the VA of outright fraud in November 2003, one VA Special Agent Raymond Vasil of the regional Inspector General’s office in Chicago retaliated against this Vietnam-era veteran for seeking retroactive PTSD-related disability benefits [Roberts sought a new retroactive date per the advice of Roberts’ own Shawano County (Wisconsin) Veteran’s Service Officer.]
VA and Airman Keith Roberts
Like 100,000s of veterans, Roberts engaged in the convoluted process of the U.S. Dept of Vet Affairs (VA) bureaucracy seeking disability benefits in what is supposed to be a non-adversarial process under the Veterans' Judicial Review Act (1988) that empowers veterans the right to judicial review of decisions involving their benefits under the exclusive authority of the legislatively created VA adjudication procedures.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—was granted at the 100 percent disability level.
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).
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.
Roberts became the central figure in what is a cautionary, Alice-in-Wonderland tale, after U.S. Atty. Biskupic’s and the VA’s scheming resulted in Roberts being tried and convicted of receiving disability benefits from the VA (by wire transfer as the VA requires for all payments).
When the veterans’ court restores Roberts VA disability benefits, which never should have been taken from him, he will not be eligible to receive them, while he is now serving 48 months in federal prison for receiving the very same benefits.
The Veterans Court can restore the benefits, but lacks authority to order Roberts released from prison.
That is the argument Roberts has been making for many months: That criminal prosecution for an allegation of VA benefits fraud cannot commence until the final VA determination has been made.
One observer said, “Alice-in-Wonderland? Try Kafkaesque.”
Roberts Hits 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 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.
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.
[From AlterNet: The Army Times reports a backlog of some 600,000 veterans' benefits claims on appeal. On average, it takes the VA 177 days to process an original claim and 657 days to process an appeal. If psychically injured veterans die with their case under appeal, the case dies with them.]
The VA’s Vasil (who has no professional law enforcement experience and no VA benefit adjudication experience) disingenuously told Roberts in November 2003 that 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 beginning in Dec. 2003 as Roberts continued making waves with the VA Regional Office staff in Milwaukee, Wisconsin with his accusations.
Roberts had been a thorn in the side of the Milwaukee Regional VA’s office as well as the Illinois-based regional VA Inspector General’s office for insisting on his rights as a veteran to his benefits in less-than-diplomatic tones and language.
“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. “[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. I'd have to say that you guys are TOTALLY (uppercase in the original) right about Roberts' conviction being bullshit. ...”As late as this spring, the Clement J. Zablocki VA Medical Center in Milwaukee security desk had a picture of Roberts with instructions to call the VA police if Roberts were to visit the Center, according to the anonymous VA Medical Center source who contacted the Lee Rayburn radio show in Madison.
In other words, to an experienced and objective VA civil servant, Roberts’ claim was air tight, but his indignant manner made him a target of bureaucratic retribution.
VA Hits Back
But Special Agent Vasil flew around the country on the taxpayers’ dime asking veterans who did not know Roberts during his service in Italy if 30-some years later the veterans could place Roberts at the scene of Roberts’ friend’s (Holland) death where Roberts and Holland were stationed.Reportedly, Vasil neglected to show these men a photo of Roberts from his Naval service.
Vasil also questioned veterans (former members of Roberts’ unit) both in person and by phone asking if the veterans knew if Roberts and Holland were friends 30-some years ago.
Not surprisingly, the vets could not recall.
Incredibly, the answers received by Vasil regarding the Roberts-Holland friendship and Roberts’ actions at the chaotic death scene 30-plus years in the past formed the foundation of a mail fraud indictment (and later the trial conviction) secured by U.S. Atty Biskupic’s office 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, though the Postal Inspector’s investigations usually precede mail fraud indictments.
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 U.S. Treasury Department, as is usual in wire fraud indictments.
The only law enforcement agency used in the Grand Jury testimony securing the indictments was the regional 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 his colleagues; and was run at the executive level by ex-VA 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.
Vasil’s Grand Jury testimony demonstrates Vasil’s weak familiarity with VA adjudication processes:
Grand Jury Question: “Is that part of your training that you have to know the basics of how these (VA) programs work?”
Vasil’s Answer: “Yeah. I was briefly kind of instructed when I was hired, and then just while working for them, you have to learn it to investigate the cases.”
Roberts Fights Back
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. [To get an appreciation of the putative nature of the VA machinations, it is worth noting that near instantaneous collection activity was initiated by the U.S. Government against Roberts’ daughters in November 2004, though the Roberts case remained under appeal then, and remains under appeal today.]
Roberts did not take Vasil’s determination to halt Roberts’ VA payments lying down.
Roberts fired off a letter to the Secretary of the VA on November 22, 2004, and made a detailed complaint about what he claimed were the violation of his Constitutional due process rights by the VA Inspector General's office.
And an American Legion letter (among others written in October), authored by Phillip Wilkerson (dated Dec. 13, 2004), at Roberts request, took issue with the VA’s termination of benefits, and the continued withholding of information and evidence developed in the course of the VA Office of the Inspector General’s (VAOIG) fraud investigation.
Renee L. Szybala and VA Officials Plot to Take Down Roberts
“The first thing we do, let's kill all the lawyers,“ said the felonious Dick the Butcher in Shakespeare's Henry VI.
But at the VA, lawyers and regional counsels are the good guys, the professionals who adhere to the law and administrative regulations that on paper are supposed to protect veterans from arbitrary and capricious VA personnel, the yes-men who climb the ladder in the denial-of-claims culture of today’s politicized VA.
One yes-person, former VA General Counsel attorney and VA national Director of Compensation and Pension Services, Renee L. Szybala, authored the VA’s response to Robert's letter, and evidence suggests engineered the prosecution of Roberts by US Atty Biskupic.
As a former General Counsel attorney, Szybala knew perfectly well that 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.”
As Roberts’ attorney Robert Walsh states in his CAVC Supplemental brief filed in July:
“Ms. Renee Szybala, who responded to the letter for the Secretary, then appears to have had a direct involvement in orchestrating the efforts to commence criminal proceedings against the appellant in Federal District Court when she knew his appeals were pending at either the BVA (Board of Veterans' Appeals) or this Court (the CAVC).”
Szybala, who since has moved on from her position as Director of Compensation and Pension Services, was responsible for managing the network of VA Regional Offices across the country.
In an e-mail of January 27, 2005 from Debi Bevins, Special Assistant to the (VA) Secretary Jim Nicholson, Bevins asked Szybala: “Is there any truth to what Keith Roberts alleges in this e-mail?” referring to Roberts’ allegations of fraud and violations of his due process rights, and Roberts declarations of his rightful entitlement pertaining to his experiencing what the VA calls “stressors.”
Plotting a Prosecution
In the same e-mail, Bevins asks: “Have we heard any news on the prosecution of Keith Roberts?”
Szybala replies in part in an e-mail dated January 27, 2005 that: “Of course not (there is no truth to Roberts’ allegations). But he (Roberts) may be confused and believe it. I have known of and been dealing with Mr. Roberts’ complaints for several years now, dating to my time at OGC (VA Office of the General Counsel) as explained in the message below. … In the interest of full disclosure, I also have a letter on this case from the American Legion, dated October 15, 2004 (asking for Vasil’s report), to which I have not yet responded. The fraud for which Mr. Roberts’ service connection was severed was uncovered, investigated, and reported by the OIG (Office of the Inspector General). To respond to the Legion’s letter, we need to confer with the OIG and have had trouble connecting. When we do we’ll ask them the question about the prosecution, too. My guess is, however, that this case would not interest a U.S. Attorney. …”
Several points made in this and subsequent e-mails obtained by the defense and not presented at the criminal trial (though successfully made part of the record of appeal at CAVC after efforts by atty Robert Walsh) are critical and raise questions about the legality and propriety of the prosecution instigated by the VA.
No testimony or evidence was presented at Roberts’ trial pertaining to Ms. Szybala’s statement that Szybala had been dealing with Roberts’ allegations and complaints for several years and that Szybala stated that “… he (Roberts) may be confused and believe it.”
This is significant because if Roberts believed the VA claim that he was pursuing and Szybala assumed Roberts’ believed his claim, this discredits the principal allegation of the government’s criminal case that Roberts devised a “scheme” to formulate misrepresentations with the intent of defrauding the VA, the alleged crime for which Roberts now sits behind bars.
In fact, the government in the person of Barbra Nehls of the Milwaukee VA Regional office wrongly claimed at trial that Roberts’ benefits were reduced based upon the VA’s determination that Roberts’ statements of facts from 1969 formed the basis of the VA decision to grant or deny benefits.
This is a material misrepresentation of VA procedure: The determination of PTSD-related benefits relies upon medical evidence (such as being diagnosed by five different medical professionals that a vet has PTSD) and the existence of an in-service stressor (such as the reality that a man was crushed to death by a C-54 aircraft while an Airman was on duty), per 38 CFR (Code of Federal Regulations) 3.304(f). All a veteran has to achieve in first-person testimony is corroboration, not verification. The Code defines Post Traumatic Stress Disorder as Service connection for post-traumatic stress disorder; (PTSD) requires medical evidence diagnosing the condition in accordance with 38 CFR 4.125(a); a link, established by medical evidence, between current symptoms and an in-service stressor; and credible evidence that the claimed in-service stressor occurred (38 CFR 3.304(f)).
Officials from the Milwaukee Regional Office and Special Agent Raymond Vasil’s Inspector General’s (OIG) office were included in the series of e-mails including one e-mail from the OIG's Vasil dated January 27, 2005, stating: “The U.S. Attorney (Biskupic) is interested in prosecuting. He is not 100% yet and wanted me to interview any additional persons I could find that were present when the original accident happened in 1969. … “
The engineering of the prosecution evident from the e-mails and the rushed, extraordinary prosecution itself were challenged in Roberts’ supplemental brief filed at the U.S. Court of Appeals for Veterans Claims (CAVC) in July.“
As detailed in the brief, the conduct of the (VA) Secretary has been contrary to law, in bad faith, highly adversarial. There is an inference of impropriety by any number of senior officials in the U.S. Department of Veterans Affairs,” reads the brief filed by attorney Robert Walsh.
And it bears repeating from the brief: “Ms. Renee Szybala, who responded to the letter for the Secretary, then appears to have had a direct involvement in orchestrating the efforts to commence criminal proceedings against the appellant in Federal District Court when she knew his appeals were pending at either the BVA (Board of Veterans' Appeals) or this Court (the CAVC).”
Two links of VA e-mails are below.
- E-mail
- E-mail
Roberts’ CAVC brief continues:
In this case the pursuit of the criminal conviction of this Appellant was ongoing during the entire pendency of this appeal.
The (VA) Secretary appears to have willfully and knowingly circumvented the jurisdiction of this Court (CAVC) and his employees and agents made material misrepresentations of the precedent rulings of this Court and the U.S. Court of Appeals of the Federal Circuit in open court, under oath.Had a determination of fraud actually been made, the Appellant would have still had the right to appeal that decision. … The referral of this case directly from the VA OIG’s Chicago office to the U.S. Attorney for the Eastern District of Wisconsin for criminal proceedings is contrary to law, justice, equity, and fair play. When the Court rules to restore the benefits of the Appellant, we shall have arrived at an absurd “Alice in Wonderland” result.
A veteran will sit in prison for accepting the wire transfer of funds to which he was legally entitled. …This extraordinary rendition of a veteran from a VA administrative dispute directly into Federal District Court on criminal charges is unprecedented.
VA Federal Law
Veteran-advocacy groups deride the delivery of health care and disability benefits to our veterans as another example of Bush administration incompetence in administering government services and entitlements to which it is ideologically hostile.
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 regulations—the 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, and several regulations that have the force of federal law were blatantly ignored by VA officials in the prosecution of Roberts.
U.S. Atty Biskupic ought to have read up on the Code of Federal Regulations (CFR), Title 38, “Pensions, Bonuses, and Veterans Relief” and tossed the case off his desk after being approached by VA officials.
Title 38 (3.901 Fraud) specifically defines “fraud” (what Roberts is accused of engaging in in a sense, though the specific charge was changed from VA fraud to mail fraud to wire fraud) 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.”
Title 38 Code of Federal Regulations, Section 3.905 (a) Jurisdiction
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.
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 VA 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 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’ claims continues adjudication 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.
Title 38 Code of Federal Regulations, Section 3.905 (b) Fraud
The VA is also required, by federal regulation, 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. The reason is the VA knew that they could never prove veterans’ fraud because of Roberts’ voluminous VA file supporting Roberts claim, much of which was kept out of evidence at the wire fraud trial.
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’s 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 and the Milwaukee regional office that knew that Roberts could never be convicted of VA fraud, so they summarily denied his benefits, began the kangaroo investigation by Vasil and then communicated the case circumstances to U.S. Atty Biskupic who charged Roberts with postal fraud and then with wire fraud using the denial of benefits (under appeal per federal statute and administrative law regulations) and misrepresentations of VA procedure at trial as evidence of criminal fraud.
So, before and after Special Agent Vasil, Director of Compensation and Pension Services, Renee L. Szybala, and the Milwaukee regional office were scheming to charge Roberts with fraudulently presenting his VA claim, and Roberts’ liberty became endangered, the VA never formerly notified Roberts through the Regional Counsel or otherwise that his forfeiture and reductions were asserted by the VA Regional Counsel to be based upon fraud.U.S. 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, and the government briefs filed with the Court of Appeals for the Seventh Circuit also refuses to address the issue.
This would appear to raise serious due process considerations that may result in the overturning of Roberts’ criminal 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.
Title 38 § 14.561 - Necessary Administrative or Adjudicatory Action
In the criminal case appeal, Roberts argues that “… with regard to prosecutions related to benefits claims, certain administrative measures must be taken citing CFR Title 38 § 14.561:Title 38 § 14.561 reads: “Before a submission is made to the U.S, Attorney in cases involving personnel or claims, the … Regional Counsel at the regional office, hospital or center, if the file is in the regional office or other field facility, will first ascertain that necessary administrative or adjudicatory … action has been taken”
To translate, the Regional Counsel in this case has to ensure that the rights embodied in the administrative processes are followed (and exhausted) before sending the case off to the US Atty.
This argument is made in both Roberts’ criminal and CAVC briefs. 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 litigating the same facts, transactions and occurrences. The VA regulation for initiating criminal charges against a veteran was not followed, 38 C.F.R. § 14.561."
The VA’s position made in their response brief is that this administrative law is obsolete (though it was never repealed) and that the VA does not need to follow the law.
In an August VA response to Roberts’ CAVC brief, the VA argues that the Office of Inspector General’s personnel like Vasil, with no legal training or law enforcement experience, and the VA police are “responsible for notifying the DOJ or the USA (US Atty) of possible criminal matters. … The authority and duty to refer criminal cases is vested in the VA police and the OIG. … it could be argued that, as it relates to criminal prosecutions, section 14.561 is obsolete.”
The VA’s convoluted argument on its' not abiding by section 14.561 (Counsel assurance of necessary administrative or adjudicatory procedure) authored by Carolyn F. Washington, VA deputy asst general counsel, amounts to the VA equivalent of a Bush signing statement—we’ll obey federal law as we see fit.
The VA police authority and role has been to tend to often-disturbed and violent veterans seeking medical and psychological assistance after coming home from service. The VA police has never been charged with investigating benefit claims, much less referring claims cases in the middle of VA adjudication to the US Atty’s office.
Politicalization
There are plenty of candidates for condemnation in this affair in today’s environment when whole agencies of the U.S. government have been usurped by an administration lacking in conscience and public accountability, politicizing virtually every agency in sight, including:
- U.S. Atty Biskupic’s office
- Special Agent Raymond Vasil of the regional VA Inspector General’s office [“A cop Vasil is not, just an idiot with a badge,” said one veteran assisting Roberts] who lied to and vocally mocked Roberts while flying around the country fabricating a case against Roberts.
- The VA benefits process that systemically wears down veterans with the apparent intention of inducing them to give up their fight for benefits [this process is being adjudicated in the unprecedented class action suit by veterans of Iraq and Afghanistan.] In fact, the VA claims process can be so frustrating that many vets (especially those suffering from PTSD) are thrown into fits of rage directed at the VA itself.
- The American Enterprise Institute (AEI) that demeans veterans for seeking help with Post Traumatic Stress Disorder (PTSD) in this “culture of trauma.”
- The Pentagon that blames veterans “personality disorders” and lack of faith in God for veterans suffering after service.
- Former VA national Director of Compensation and Pension Services, Renee L. Szybala, and Jon Baker, director of the Milwaukee Regional VA office, actively participated in efforts to have Roberts prosecuted, while they intentionally took steps to ensure the VA Regional Counsel did not have an opportunity to perform the mandatory legal review before the matter went to the U.S. Attorney, as required by federal regulations.
Again, Szybala and other VA officials knew that Roberts had an appeal pending at the U.S. Court of Appeals for Veterans Claims, and that under VA regulations until that appeal was completed the case should not have been released for criminal or collection action.
- Barbra Nehls, formerly of the Milwaukee VA Regional office and since promoted, who wrongly claimed at trial that Roberts’ benefits were reduced based upon the VA’s determination that Roberts’ statements of facts from 1969 formed the basis of the VA decision to grant or deny benefits. This is a material misrepresentation of VA procedure.
- And of course, Carolyn F. Washington, VA deputy asst general counsel, a woman without conscience and quintessential social climber.
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 the 7th Circuit, docket number 07-1546. Oral arguments held Oct. 25, 2007.
- U.S. Court of Appeals for Veterans Claims docket 05-2425
Roberts’ hope is that the three-member, Seventh Circuit appellate panel in Chicago will vacate his conviction for lack of evidence (similar to the infamous Georgia Thompson case prosecuted by Biskupic) and violation of due process, entitling Roberts to the VA disability benefits previously awarded to him, should the CAVC court also rule in his favor.
Roberts makes the argument in his criminal appeal that criminal prosecutions against veterans for allegedly committing fraud in filing for VA claim benefits need to follow the administrative rules (which have the force of federal law), and in this case the VA and U.S. Atty ignored the VA administrative rules.
Reply Brief Arguments Roberts’ reply brief arguments are the following:
I. 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.
II. The Evidence Presented at Trial Was Insufficient to Sustain a Conviction for Wire Fraud.
III. The Appellant’s Right to Due Process was Violated When the Government Withheld Material Information.
IV. The District Court Erred in Applying an Enhancement to the Appellant’s Sentence, as Such Was Not Submitted for Proof Beyond a Reasonable Doubt.
Legal questions and legal comments can be e-mailed to Robert Walsh at rpwalsh@sbcglobal.net.
Media on Keith Roberts
- Wisconsin Public Radio News (May 10)
- The Lee Rayburn show (June 29)
- Keith Roberts' Atty. on the Lee Rayburn show (June 6)
- WORT Radio
- A Public Affair (May 25; begins at one minute, nine seconds)
Update: PTSD Resources
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As Biskupic well knows, the U.S. v. Roberts case is anything but simple and straight-forward.
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).
Biskupic said at oral arguments: “You (veterans) have to be truthful.”
“There was evidence from the people that were 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).
“… so you have a simple, straight-forward wire fraud case that was brought against somebody who lied to the government; witnesses were brought in at the trial to support the evidence that he lied … from our perspective, not unusual, a straight-forward fraud case other than the fact that it litigated an issue from 1969. …”
Roberts’ attorney, Robert Walsh, pointed out at oral arguments that the Roberts’ case has veterans’ advocates shaking their heads in disbelief nationwide.
Said Walsh:
The Roberts matter is a“… very remarkable case … This is a matter of first impression (first presentation of question of law to a court for examination or decision). I have discussed this with probably 30 members of the Veterans Bar. And understand that’s a very small bar.
The organization of veterans’ advocates only has 400 members. … I’m a former VA district counsel staff attorney. I talked to general counsel attorneys, retired and serving. I’ve discussed this with the regional counsel in Detroit, whom I believe should have been in the screening of this case before it went to the U.S. Attorney.
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.
Following is an edited, previously published piece on Roberts demonstrating how the Navy veteran Roberts became a major political and legal Department of Veterans Affairs (VA) and DoJ target.
9/03/2007
National VA Director Pushed US Atty Biskupic to Indict Wisconsin Veteran
Madison, Wisconsin—The Bush administration has refused to prosecute even one case of contractor fraud despite the multi-billion-dollar swindling and war-profiteering scandals in Iraq, but pursues a vigorous enterprise to marginalize, investigate, and prosecute veterans receiving disability benefits in an attempt to fabricate a fraud crisis among veterans who were injured and traumatized during their service to their country.
One administration initiative to investigate 72,000 cases of Post Traumatic Stress Disorder (PTSD) was halted in 2005 after a storm of outrage from veterans’ groups and democrats.
In the PTSD case of U.S. Navy Airman Keith Roberts (1968–71) the U.S. Dept of Justice in the office of the U.S. Attorney for the Eastern District of Wisconsin, Stephen Biskupic, decided to indict a Wisconsin Vietnam-era Navy veteran (who was diagnosed with PTSD by at least five different mental health professionals), using the power of his office to convict and jail the vet on trumped-up charges of wire fraud in 2004-2005.
The case has potentially vast repercussions because if Roberts’ criminal conviction and denial and reduction of benefits stand, every veteran who has a disability case pending in the VA bureaucracy is theoretically in legal jeopardy.
Were the current VA administrative rules allowed to be rendered inoperative and a new standard for benefits claims to be enacted demanding that every veteran must verify beyond a reasonable doubt the circumstances surrounding his disability claim, every veteran claimant could face criminal wire fraud indictments, assuming they resided in a jurisdiction with a US Atty exercising the same lack of prosecutorial discretion as Biskupic.
Exercising this appalling lack of prosecutorial discretion, the U.S. Atty, after prodding from U.S. Dept of Veterans Affairs (VA) officials, drew fire for the bizarre prosecution from veterans’ groups, such as Colonel Daniel K. Cedusky’s, AUS, (Ret.), a critic of both what he calls Bush administration “chickenhawks” and anti-war activists.
Adding insult to injury, the VA also began immediate collection actions against the veteran and his two young daughters who had received education benefits related to their father’s service in the Navy.
Who or what prompted the U.S. Atty’s office is a puzzle to many readers who have followed the case of Airman Keith Roberts who has been serving 48 months in a federal prison since last March, as well as incurring associated costs of some $500,000.
But several VA e-mails point to top officials in the VA engineering a criminal prosecution while gaming the veteran’s VA benefits adjudication, and subsequently putatively financially assaulting the veteran’s family.
Roberts is but one victim of a stacked-against-the-veteran benefits system that is now the subject of an unprecedented class action law suit by veterans of the Iraq and Afghanistan wars, as veterans’ PTSD claims surge.
But Keith Roberts is indisputably a major political and legal VA target.
Roberts’ difficulty began as he hounded the VA to distraction over his claim for an earlier effective date for his disability benefits. When he accused the VA of outright fraud in November 2003, one VA Special Agent Raymond Vasil of the regional Inspector General’s office in Chicago retaliated against this Vietnam-era veteran for seeking retroactive PTSD-related disability benefits [Roberts sought a new retroactive date per the advice of Roberts’ own Shawano County (Wisconsin) Veteran’s Service Officer.]
VA and Airman Keith Roberts
Like 100,000s of veterans, Roberts engaged in the convoluted process of the U.S. Dept of Vet Affairs (VA) bureaucracy seeking disability benefits in what is supposed to be a non-adversarial process under the Veterans' Judicial Review Act (1988) that empowers veterans the right to judicial review of decisions involving their benefits under the exclusive authority of the legislatively created VA adjudication procedures.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—was granted at the 100 percent disability level.
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).
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.
Roberts became the central figure in what is a cautionary, Alice-in-Wonderland tale, after U.S. Atty. Biskupic’s and the VA’s scheming resulted in Roberts being tried and convicted of receiving disability benefits from the VA (by wire transfer as the VA requires for all payments).
When the veterans’ court restores Roberts VA disability benefits, which never should have been taken from him, he will not be eligible to receive them, while he is now serving 48 months in federal prison for receiving the very same benefits.
The Veterans Court can restore the benefits, but lacks authority to order Roberts released from prison.
That is the argument Roberts has been making for many months: That criminal prosecution for an allegation of VA benefits fraud cannot commence until the final VA determination has been made.
One observer said, “Alice-in-Wonderland? Try Kafkaesque.”
Roberts Hits 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 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.
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.
[From AlterNet: The Army Times reports a backlog of some 600,000 veterans' benefits claims on appeal. On average, it takes the VA 177 days to process an original claim and 657 days to process an appeal. If psychically injured veterans die with their case under appeal, the case dies with them.]
The VA’s Vasil (who has no professional law enforcement experience and no VA benefit adjudication experience) disingenuously told Roberts in November 2003 that 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 beginning in Dec. 2003 as Roberts continued making waves with the VA Regional Office staff in Milwaukee, Wisconsin with his accusations.
Roberts had been a thorn in the side of the Milwaukee Regional VA’s office as well as the Illinois-based regional VA Inspector General’s office for insisting on his rights as a veteran to his benefits in less-than-diplomatic tones and language.
“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. “[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. I'd have to say that you guys are TOTALLY (uppercase in the original) right about Roberts' conviction being bullshit. ...”As late as this spring, the Clement J. Zablocki VA Medical Center in Milwaukee security desk had a picture of Roberts with instructions to call the VA police if Roberts were to visit the Center, according to the anonymous VA Medical Center source who contacted the Lee Rayburn radio show in Madison.
In other words, to an experienced and objective VA civil servant, Roberts’ claim was air tight, but his indignant manner made him a target of bureaucratic retribution.
VA Hits Back
But Special Agent Vasil flew around the country on the taxpayers’ dime asking veterans who did not know Roberts during his service in Italy if 30-some years later the veterans could place Roberts at the scene of Roberts’ friend’s (Holland) death where Roberts and Holland were stationed.Reportedly, Vasil neglected to show these men a photo of Roberts from his Naval service.
Vasil also questioned veterans (former members of Roberts’ unit) both in person and by phone asking if the veterans knew if Roberts and Holland were friends 30-some years ago.
Not surprisingly, the vets could not recall.
Incredibly, the answers received by Vasil regarding the Roberts-Holland friendship and Roberts’ actions at the chaotic death scene 30-plus years in the past formed the foundation of a mail fraud indictment (and later the trial conviction) secured by U.S. Atty Biskupic’s office 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, though the Postal Inspector’s investigations usually precede mail fraud indictments.
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 U.S. Treasury Department, as is usual in wire fraud indictments.
The only law enforcement agency used in the Grand Jury testimony securing the indictments was the regional 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 his colleagues; and was run at the executive level by ex-VA 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.
Vasil’s Grand Jury testimony demonstrates Vasil’s weak familiarity with VA adjudication processes:
Grand Jury Question: “Is that part of your training that you have to know the basics of how these (VA) programs work?”
Vasil’s Answer: “Yeah. I was briefly kind of instructed when I was hired, and then just while working for them, you have to learn it to investigate the cases.”
Roberts Fights Back
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. [To get an appreciation of the putative nature of the VA machinations, it is worth noting that near instantaneous collection activity was initiated by the U.S. Government against Roberts’ daughters in November 2004, though the Roberts case remained under appeal then, and remains under appeal today.]
Roberts did not take Vasil’s determination to halt Roberts’ VA payments lying down.
Roberts fired off a letter to the Secretary of the VA on November 22, 2004, and made a detailed complaint about what he claimed were the violation of his Constitutional due process rights by the VA Inspector General's office.
And an American Legion letter (among others written in October), authored by Phillip Wilkerson (dated Dec. 13, 2004), at Roberts request, took issue with the VA’s termination of benefits, and the continued withholding of information and evidence developed in the course of the VA Office of the Inspector General’s (VAOIG) fraud investigation.
Renee L. Szybala and VA Officials Plot to Take Down Roberts
“The first thing we do, let's kill all the lawyers,“ said the felonious Dick the Butcher in Shakespeare's Henry VI.
But at the VA, lawyers and regional counsels are the good guys, the professionals who adhere to the law and administrative regulations that on paper are supposed to protect veterans from arbitrary and capricious VA personnel, the yes-men who climb the ladder in the denial-of-claims culture of today’s politicized VA.
One yes-person, former VA General Counsel attorney and VA national Director of Compensation and Pension Services, Renee L. Szybala, authored the VA’s response to Robert's letter, and evidence suggests engineered the prosecution of Roberts by US Atty Biskupic.
As a former General Counsel attorney, Szybala knew perfectly well that 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.”
As Roberts’ attorney Robert Walsh states in his CAVC Supplemental brief filed in July:
“Ms. Renee Szybala, who responded to the letter for the Secretary, then appears to have had a direct involvement in orchestrating the efforts to commence criminal proceedings against the appellant in Federal District Court when she knew his appeals were pending at either the BVA (Board of Veterans' Appeals) or this Court (the CAVC).”
Szybala, who since has moved on from her position as Director of Compensation and Pension Services, was responsible for managing the network of VA Regional Offices across the country.
In an e-mail of January 27, 2005 from Debi Bevins, Special Assistant to the (VA) Secretary Jim Nicholson, Bevins asked Szybala: “Is there any truth to what Keith Roberts alleges in this e-mail?” referring to Roberts’ allegations of fraud and violations of his due process rights, and Roberts declarations of his rightful entitlement pertaining to his experiencing what the VA calls “stressors.”
Plotting a Prosecution
In the same e-mail, Bevins asks: “Have we heard any news on the prosecution of Keith Roberts?”
Szybala replies in part in an e-mail dated January 27, 2005 that: “Of course not (there is no truth to Roberts’ allegations). But he (Roberts) may be confused and believe it. I have known of and been dealing with Mr. Roberts’ complaints for several years now, dating to my time at OGC (VA Office of the General Counsel) as explained in the message below. … In the interest of full disclosure, I also have a letter on this case from the American Legion, dated October 15, 2004 (asking for Vasil’s report), to which I have not yet responded. The fraud for which Mr. Roberts’ service connection was severed was uncovered, investigated, and reported by the OIG (Office of the Inspector General). To respond to the Legion’s letter, we need to confer with the OIG and have had trouble connecting. When we do we’ll ask them the question about the prosecution, too. My guess is, however, that this case would not interest a U.S. Attorney. …”
Several points made in this and subsequent e-mails obtained by the defense and not presented at the criminal trial (though successfully made part of the record of appeal at CAVC after efforts by atty Robert Walsh) are critical and raise questions about the legality and propriety of the prosecution instigated by the VA.
No testimony or evidence was presented at Roberts’ trial pertaining to Ms. Szybala’s statement that Szybala had been dealing with Roberts’ allegations and complaints for several years and that Szybala stated that “… he (Roberts) may be confused and believe it.”
This is significant because if Roberts believed the VA claim that he was pursuing and Szybala assumed Roberts’ believed his claim, this discredits the principal allegation of the government’s criminal case that Roberts devised a “scheme” to formulate misrepresentations with the intent of defrauding the VA, the alleged crime for which Roberts now sits behind bars.
In fact, the government in the person of Barbra Nehls of the Milwaukee VA Regional office wrongly claimed at trial that Roberts’ benefits were reduced based upon the VA’s determination that Roberts’ statements of facts from 1969 formed the basis of the VA decision to grant or deny benefits.
This is a material misrepresentation of VA procedure: The determination of PTSD-related benefits relies upon medical evidence (such as being diagnosed by five different medical professionals that a vet has PTSD) and the existence of an in-service stressor (such as the reality that a man was crushed to death by a C-54 aircraft while an Airman was on duty), per 38 CFR (Code of Federal Regulations) 3.304(f). All a veteran has to achieve in first-person testimony is corroboration, not verification. The Code defines Post Traumatic Stress Disorder as Service connection for post-traumatic stress disorder; (PTSD) requires medical evidence diagnosing the condition in accordance with 38 CFR 4.125(a); a link, established by medical evidence, between current symptoms and an in-service stressor; and credible evidence that the claimed in-service stressor occurred (38 CFR 3.304(f)).
Officials from the Milwaukee Regional Office and Special Agent Raymond Vasil’s Inspector General’s (OIG) office were included in the series of e-mails including one e-mail from the OIG's Vasil dated January 27, 2005, stating: “The U.S. Attorney (Biskupic) is interested in prosecuting. He is not 100% yet and wanted me to interview any additional persons I could find that were present when the original accident happened in 1969. … “
The engineering of the prosecution evident from the e-mails and the rushed, extraordinary prosecution itself were challenged in Roberts’ supplemental brief filed at the U.S. Court of Appeals for Veterans Claims (CAVC) in July.“
As detailed in the brief, the conduct of the (VA) Secretary has been contrary to law, in bad faith, highly adversarial. There is an inference of impropriety by any number of senior officials in the U.S. Department of Veterans Affairs,” reads the brief filed by attorney Robert Walsh.
And it bears repeating from the brief: “Ms. Renee Szybala, who responded to the letter for the Secretary, then appears to have had a direct involvement in orchestrating the efforts to commence criminal proceedings against the appellant in Federal District Court when she knew his appeals were pending at either the BVA (Board of Veterans' Appeals) or this Court (the CAVC).”
Two links of VA e-mails are below.
Roberts’ CAVC brief continues:
In this case the pursuit of the criminal conviction of this Appellant was ongoing during the entire pendency of this appeal.
The (VA) Secretary appears to have willfully and knowingly circumvented the jurisdiction of this Court (CAVC) and his employees and agents made material misrepresentations of the precedent rulings of this Court and the U.S. Court of Appeals of the Federal Circuit in open court, under oath.Had a determination of fraud actually been made, the Appellant would have still had the right to appeal that decision. … The referral of this case directly from the VA OIG’s Chicago office to the U.S. Attorney for the Eastern District of Wisconsin for criminal proceedings is contrary to law, justice, equity, and fair play. When the Court rules to restore the benefits of the Appellant, we shall have arrived at an absurd “Alice in Wonderland” result.
A veteran will sit in prison for accepting the wire transfer of funds to which he was legally entitled. …This extraordinary rendition of a veteran from a VA administrative dispute directly into Federal District Court on criminal charges is unprecedented.
VA Federal Law
Veteran-advocacy groups deride the delivery of health care and disability benefits to our veterans as another example of Bush administration incompetence in administering government services and entitlements to which it is ideologically hostile.
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 regulations—the 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, and several regulations that have the force of federal law were blatantly ignored by VA officials in the prosecution of Roberts.
U.S. Atty Biskupic ought to have read up on the Code of Federal Regulations (CFR), Title 38, “Pensions, Bonuses, and Veterans Relief” and tossed the case off his desk after being approached by VA officials.
Title 38 (3.901 Fraud) specifically defines “fraud” (what Roberts is accused of engaging in in a sense, though the specific charge was changed from VA fraud to mail fraud to wire fraud) 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.”
Title 38 Code of Federal Regulations, Section 3.905 (a) Jurisdiction
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.
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 VA 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 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’ claims continues adjudication 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.
Title 38 Code of Federal Regulations, Section 3.905 (b) Fraud
The VA is also required, by federal regulation, 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. The reason is the VA knew that they could never prove veterans’ fraud because of Roberts’ voluminous VA file supporting Roberts claim, much of which was kept out of evidence at the wire fraud trial.
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’s 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 and the Milwaukee regional office that knew that Roberts could never be convicted of VA fraud, so they summarily denied his benefits, began the kangaroo investigation by Vasil and then communicated the case circumstances to U.S. Atty Biskupic who charged Roberts with postal fraud and then with wire fraud using the denial of benefits (under appeal per federal statute and administrative law regulations) and misrepresentations of VA procedure at trial as evidence of criminal fraud.
So, before and after Special Agent Vasil, Director of Compensation and Pension Services, Renee L. Szybala, and the Milwaukee regional office were scheming to charge Roberts with fraudulently presenting his VA claim, and Roberts’ liberty became endangered, the VA never formerly notified Roberts through the Regional Counsel or otherwise that his forfeiture and reductions were asserted by the VA Regional Counsel to be based upon fraud.U.S. 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, and the government briefs filed with the Court of Appeals for the Seventh Circuit also refuses to address the issue.
This would appear to raise serious due process considerations that may result in the overturning of Roberts’ criminal 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.
Title 38 § 14.561 - Necessary Administrative or Adjudicatory Action
In the criminal case appeal, Roberts argues that “… with regard to prosecutions related to benefits claims, certain administrative measures must be taken citing CFR Title 38 § 14.561:Title 38 § 14.561 reads: “Before a submission is made to the U.S, Attorney in cases involving personnel or claims, the … Regional Counsel at the regional office, hospital or center, if the file is in the regional office or other field facility, will first ascertain that necessary administrative or adjudicatory … action has been taken”
To translate, the Regional Counsel in this case has to ensure that the rights embodied in the administrative processes are followed (and exhausted) before sending the case off to the US Atty.
This argument is made in both Roberts’ criminal and CAVC briefs. 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 litigating the same facts, transactions and occurrences. The VA regulation for initiating criminal charges against a veteran was not followed, 38 C.F.R. § 14.561."
The VA’s position made in their response brief is that this administrative law is obsolete (though it was never repealed) and that the VA does not need to follow the law.
In an August VA response to Roberts’ CAVC brief, the VA argues that the Office of Inspector General’s personnel like Vasil, with no legal training or law enforcement experience, and the VA police are “responsible for notifying the DOJ or the USA (US Atty) of possible criminal matters. … The authority and duty to refer criminal cases is vested in the VA police and the OIG. … it could be argued that, as it relates to criminal prosecutions, section 14.561 is obsolete.”
The VA’s convoluted argument on its' not abiding by section 14.561 (Counsel assurance of necessary administrative or adjudicatory procedure) authored by Carolyn F. Washington, VA deputy asst general counsel, amounts to the VA equivalent of a Bush signing statement—we’ll obey federal law as we see fit.
The VA police authority and role has been to tend to often-disturbed and violent veterans seeking medical and psychological assistance after coming home from service. The VA police has never been charged with investigating benefit claims, much less referring claims cases in the middle of VA adjudication to the US Atty’s office.
Politicalization
There are plenty of candidates for condemnation in this affair in today’s environment when whole agencies of the U.S. government have been usurped by an administration lacking in conscience and public accountability, politicizing virtually every agency in sight, including:
- U.S. Atty Biskupic’s office
- Special Agent Raymond Vasil of the regional VA Inspector General’s office [“A cop Vasil is not, just an idiot with a badge,” said one veteran assisting Roberts] who lied to and vocally mocked Roberts while flying around the country fabricating a case against Roberts.
- The VA benefits process that systemically wears down veterans with the apparent intention of inducing them to give up their fight for benefits [this process is being adjudicated in the unprecedented class action suit by veterans of Iraq and Afghanistan.] In fact, the VA claims process can be so frustrating that many vets (especially those suffering from PTSD) are thrown into fits of rage directed at the VA itself.
- The American Enterprise Institute (AEI) that demeans veterans for seeking help with Post Traumatic Stress Disorder (PTSD) in this “culture of trauma.”
- The Pentagon that blames veterans “personality disorders” and lack of faith in God for veterans suffering after service.
- Former VA national Director of Compensation and Pension Services, Renee L. Szybala, and Jon Baker, director of the Milwaukee Regional VA office, actively participated in efforts to have Roberts prosecuted, while they intentionally took steps to ensure the VA Regional Counsel did not have an opportunity to perform the mandatory legal review before the matter went to the U.S. Attorney, as required by federal regulations.
Again, Szybala and other VA officials knew that Roberts had an appeal pending at the U.S. Court of Appeals for Veterans Claims, and that under VA regulations until that appeal was completed the case should not have been released for criminal or collection action.
- Barbra Nehls, formerly of the Milwaukee VA Regional office and since promoted, who wrongly claimed at trial that Roberts’ benefits were reduced based upon the VA’s determination that Roberts’ statements of facts from 1969 formed the basis of the VA decision to grant or deny benefits. This is a material misrepresentation of VA procedure.
- And of course, Carolyn F. Washington, VA deputy asst general counsel, a woman without conscience and quintessential social climber.
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 the 7th Circuit, docket number 07-1546. Oral arguments held Oct. 25, 2007.
- U.S. Court of Appeals for Veterans Claims docket 05-2425
Roberts’ hope is that the three-member, Seventh Circuit appellate panel in Chicago will vacate his conviction for lack of evidence (similar to the infamous Georgia Thompson case prosecuted by Biskupic) and violation of due process, entitling Roberts to the VA disability benefits previously awarded to him, should the CAVC court also rule in his favor.
Roberts makes the argument in his criminal appeal that criminal prosecutions against veterans for allegedly committing fraud in filing for VA claim benefits need to follow the administrative rules (which have the force of federal law), and in this case the VA and U.S. Atty ignored the VA administrative rules.
Reply Brief Arguments Roberts’ reply brief arguments are the following:
I. 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.
II. The Evidence Presented at Trial Was Insufficient to Sustain a Conviction for Wire Fraud.
III. The Appellant’s Right to Due Process was Violated When the Government Withheld Material Information.
IV. The District Court Erred in Applying an Enhancement to the Appellant’s Sentence, as Such Was Not Submitted for Proof Beyond a Reasonable Doubt.
Legal questions and legal comments can be e-mailed to Robert Walsh at rpwalsh@sbcglobal.net.
Media on Keith Roberts
- Wisconsin Public Radio News (May 10)
- The Lee Rayburn show (June 29)
- Keith Roberts' Atty. on the Lee Rayburn show (June 6)
- WORT Radio
- A Public Affair (May 25; begins at one minute, nine seconds)
Update: PTSD Resources
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