May 13, 2008

Weakening US Criminal Case, VA Turns Down Jailed Wisc Vet’s PTSD Claim


Update: CREW AND VOTEVETS EXPOSE VA DIRECTIVE BARRING STAFF FROM DIAGNOSING SOLDIERS WITH PTSD, TO CUT COSTS
- See VA E-mail Obtained via FOIA Request

by Michael Leon (via mal contends)

Madison, Wisconsin — Vietnam-era Navy veteran Keith Roberts (1968-71) is an honorably discharged Navy airman who feels betrayed by his government, specifically the U.S. Dept of Veterans Affairs (VA) and the U.S. Dept of Justice, for its self-conscious and successful efforts to financially ruin and imprison him.

Last month in April, the Gillette, Wisconsin native received word from the Milwaukee VA Regional Office that his VA disability claim for Post Traumatic Stress Disorder (PTSD) retroactive to his discharge was denied—a development not unexpected from a hostile VA, but under the circumstances farcical as he sits in a federal prison in Minnesota for applying for the same benefits.

Now, the VA says he does not have PTSD, a position contradicted by several medical professionals and Roberts' extensive documentary record.

More significantly for the imprisoned Roberts is that the VA decision corroborates Roberts' case that he never had any intent to defraud the VA, the alleged crime for which he is now imprisoned.

Roberts makes two lack-of-intent arguments in his appeal brief to the Court of Appeals for the Seventh Circuit filed last year: “The Evidence Offered at Trial did not Establish, Beyond a Reasonable Doubt that the Alleged Misrepresentations were Made with the Intent to Defraud., “ and in “The Evidence Offered at Trial did not Establish, Beyond a Reasonable Doubt that the Appellant Intentionally Misrepresented Facts to the VA.”

The alleged wire fraud is composed of the main allegations against Roberts by the US DoJ that he fabricated his role in trying to rescue fellow Airman Gary Holland, crushed to death in a gruesome C-54 aircraft accident in 1969, and lied about his friendship with Holland.

Both charges are demonstrably untrue and are charges on which US Atty Stephen Biskupic (not known for his prosecutorial discretion and hungry to augment his win/loss record and curry favor with the administration during this period) secured criminal indictments against Roberts and won a conviction in 2006.

Diagnosed as suffering from Post Traumatic Stress Disorder (PTSD) by several private and public doctors during the 1990s, Roberts had been granted a 100 percent disability rating in June 1999 by the US Veterans Administration (VA) after a 12-year benefits claim process.

But not before Roberts, angered and frustrated with the VA, upset the wrong people in the government that he served.

"…The prosecution smacks of retaliation and a plan to suppress veterans claims—Roberts was prosecuted for tenaciously pursuing a claim for benefits, which VA resisted and which is still in the benefits review process," wrote former Harper’s magazine columnist and human rights attorney, Scott Horton, last year.

An experienced and objective VA civil servant knowledgeable about the specifics of Roberts claim agreed.

"[T]he only reason Airman Roberts was ever prosecuted was because he was a ‘belligerent ass’ who kept insisting that he get paid back to discharge. He was demanding an appeal in Washington," said a background source at the Clement J. Zablocki VA Medical Center in Milwaukee who e-mailed the Lee Rayburn radio show in Madison in early June 2007 about the Roberts affair, and asked to remain anonymous out of fear of losing his job. "I'd have to say that you guys are TOTALLY (uppercase in the original) right about Roberts' conviction being bullshit ..."

April 2008 VA Decision

The significance of the April VA decision lies in the fact that Roberts’ previously successful VA claim was severed because of an "unverified stressor," and the VA omits anything about Roberts committing fraud.

This is because “when a stressor is not related to combat, a veteran's testimony alone does not qualify as ‘credible supporting evidence’ of an occurrence of an in-service stressor," (p. 13 Dept of VA, Milwaukee VA Regional Office; 04/14/2008, Statement of the Case) because a veteran’s recollection as conveyed in his/her testimony is not reliable.

Said Roberts’ attorney Robert Walsh at the oral arguments last October before the Court of Appeals for the Seventh Circuit, referencing this VA standard:

… 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)?

In other words, veterans' testimonies are not sufficient to establish a fact base for obtaining a VA disability claim, but are sufficient for a criminal indictment of fraud, according to US Atty Biskupic.

Charges of fraud are precisely what the VA convinced US Atty Biskupic to pursue at a jury trial where misrepresentation of VA practices and standards were made in several instances.

Stated Atty Robert Walsh at oral arguments last October:

... (I)t's a total distortion in this record, and any suggestion that any veteran can just walk into the V.A., file a claim and say, you know, a peace time Veteran, that I was here in the states and I was sexually assaulted, and it's stressful, give me money. And the (VA’s) answer is, did you tell the chaplain, did you go to the hospital, did you confide in a family member, do you have a contemporaneous letter, do you have documentation? ‘No, I was embarrassed’. Then the claim fails. Your own statement, no matter how compelling the argument, how tragic the circumstances, is not going to be the basis of an award of PTSD.

The practice of demanding supporting documentation, and not taking a veteran's testimony as dispositive in VA claims is common knowledge among VA claim adjudication personnel, attorneys in the bar who argue cases at the D.C.-based Court of Appeals for Veterans Claims (CAVC), and veterans’ advocates around the country.

The main allegations against Roberts are that he fabricated, with intent, his role in trying to rescue Holland and lied about his friendship with Holland in his testimony in his VA claims.

The US Atty’s office convinced the jury that the fellow airman Holland was not Roberts’ friend, though the VA April decision acknowledges that Roberts had at least a working relationship with Holland while stationed at the same Navy airbase in Italy.

The Roberts support network and family see this VA acknowledgement as a “giant step in the right direction,” asserting CAVC judicial doctrine recognizes the veteran claimant does not have to prove every detail surrounding his claim, and as Atty Roberts has argued, the VA claim process is supposed to “paternalistic” and not “adversarial”.

“In our opinion VA has now put it in writing (in its April 2008) that can be understood by everyone that Keith did not commit fraud, that this (VA) Statement of the Case is their way of weaseling out of what they have done to Keith by admitting that he did not commit fraud,” e-mailed Deloris Roberts, wife of Keith Roberts.

"In our opinion a Motion for Leave to Amend the Record should be made to the 7th Cir. informing that there is new evidence that tends to exonerate the Appellant-Defendant.”

The cases that remain to be adjudicated are:

- U.S. Court of Appeals for Veterans Claims (CAVC) (Roberts v. Secretary of the VA (05-2425)

- U.S. Court of Appeals for the Seventh Circuit (U.S. v. Roberts, U.S. District Court for the Eastern District of Wisconsin, Docket 05-CR-118).

VA Gets Mean

Roberts had hounded the VA to distraction and irritation when he accused the VA of outright fraud in 2003 in arguing for an earlier retroactive date for his benefits.

One VA Special Agent Raymond Vasil, of the Regional Inspector General’s office in Illinois, took point in retaliating against this Vietnam-era veteran for seeking an earlier retroactive date for his diagnosed PTSD-related disability benefits—administrative events by Vietnam-era veterans that are politically unpopular with the American Enterprise Institute and the Bush administration.

It is in this context that Roberts was reportedly often argumentative and insulting to the VA.

On August 16, 2004, the VA halted the benefits being paid to Roberts based upon Special Agent Vasil’s investigation; Roberts appealed the decision on September 14, 2004.

Just months later Roberts was indicted on fraud charges, in March (mail fraud) and September 2005 (a superseding indictment of wire fraud) .

Roberts has been serving a four-year sentence since March 2007 for seeking help by applying for VA health care benefits—actions the U.S. government subsequently contended to part to be of a fraudulent scheme for which Roberts was prosecuted and convicted in November 2006 by U.S. Attorney Stephen Biskupic, who had previously been on Karl Rove’s list of endangered U.S. Attys.

After the Roberts case and some other highly suspect cases, Biskupic name disappeared off the list.

Roberts is now fighting in both a criminal appellate court (U.S. Court of Appeal for the Seventh Circuit) and the administrative veterans’ claims court (U.S. Court of Appeals for Veteran Claims (CAVC) the same factual and legal disputes.

Roberts’ family and elderly parents say they worry about ever seeing him again as the 60-year-old Vietnam-era vet awaits decisions from the two courts.

Political Environment

Roberts was targeted by the US Dept of Veterans Affairs (VA) in 2003-05, and became the central figure in this Alice-in-Wonderland tale, after U.S. Attorney Stephen Biskupic of Wisconsin and top VA officials schemed to convict Roberts’ of fraudulently receiving VA benefits (by wire transfer as the VA requires).

Veterans’ advocates see Roberts as a victim of a vigorous attempt to marginalize, investigate, and prosecute veterans receiving disability benefits in an aborted attempt to fabricate a fraud crisis among veterans who were injured and traumatized during their service to their country.

As the Iraq and Afghanistan wars produce 100,000s more wounded veterans—a phenomenon that is now the subject of an unprecedented class action law suit by veterans of the Iraq and Afghanistan against the VA—advocates allege that Roberts’ extraordinary prosecution was part of the Bush administration’s priorities to discourage VA disability benefits claims, especially among Vietnam-era veterans, serving to carry out the American Enterprise Institute (AEI)/Bush policy that demeans veterans for seeking help with PTSD in what the AEI derisively brands a “culture of trauma.”

The Pentagon has gone so far as to blame veterans “personality disorders” and lack of faith in God for veterans suffering after service. [And now, as a VA May 1, 2008 e-mail obtained via FOIA request reveals, that because of “compensation seeking veterans,” VA staff should “refrain from giving a diagnosis of PTSD straight out” and they should “R/O [rule out] PTSD” and consider a diagnosis of “Adjustment Disorder” instead.

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 current environment with the Bush administration under a heavy assault for its incompetence and hostility to veterans in an election year, and the DoJ under political fire for political prosecutions, it is doubtful that even US Atty Biskupic would cook up the same prosecution against Roberts.

Media Attention

The Roberts case drawn the attention and denunciations on Wisconsin Public Radio, the Madison Air America-formatted radio station’s Lee Rayburn, Harper’s magazine, and numerous progressive blogs and veterans’ journals, but had been shut out in the traditional print media before a piece by Josh Coffman was published in the daily News-Enterprise (Kentucky) in April on Roberts’ sister’s efforts to free her brother as administrator of the Keith A. Roberts Defense Fund, Inc.

The Roberts family remains shocked to this day by the hostility of the DoJ and VA.

“I am embarrassed by and disappointed in my government. So much talks in lofty circles about support for vets; about acknowledging PTSD (for the first time); we should be doing all we can for these guys without question. This is a Bush railroad if I ever saw one,” e-mailed Karen Ruyle of Colorado Springs Colorado, cousin of Roberts and wife of an Army veteran. “I now live right near Ft Carson and hear lots of talk, etc about veterans, their treatment, etc. I am really disgusted with what comes out of Washington. I really thought Bob Gates would have stepped in and looked at the veteran issue but I guess he's pretty engaged with Iraq/Iran.”

Arguments

Reads Roberts' appellate motion (that was granted last year to supplement the record) before the U.S. Court of Appeals for Veterans Claims (CAVC):

The plain reading of the statutes as found in Title 38 of the United States Code and their related regulations leave no doubt that the intent of Congress was that veterans not be forced to defend themselves simultaneously in two federal judicial forums. … As a result of the failure of the Secretary to comply with his own rules and regulations Mr. Roberts was prosecuted for wire fraud for receiving electronic fund transfers of his monthly VA payments for service connected disability. As detailed in the brief supporting this motion, the conduct of the Secretary has been contrary to law, in bad faith, highly adversarial and raises the inference of impropriety by a number of senior officials in the U.S. Department of Veterans Affairs. ... The Appellant was subjected to administrative actions artfully tailored to deny him due process in the loss of a property right, his disability benefits. He did not realize that the was also being dragged into a vortex of VA action for which he could, and did, suffer a loss of liberty.

Said a member of Roberts’ defense team: “We do not believe that Congress intended that a veteran defend himself in two forums at the same time. The U.S. Court of Appeals for Veterans Claims and the U.S. Court of Appeals for the Seventh Circuit will have to sort out the mess the VA and the Department of Justice have created here.”

The criminal case is entitled No. 07-1546 UNITED STATES OF AMERICA, Plaintiff-Appellee, v. KEITH A. ROBERTS, Defendant-Appellant, (On Appeal from the United States District Court for the Eastern District of Wisconsin).


The criminal appellate brief makes due process and insufficient-evidence arguments.

The listed arguments include:

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.
A. The Evidence Offered at Trial did not Establish, Beyond a Reasonable Doubt, that More than a Minor Portion of the Appellant’s Account of the Incident was Misrepresented to the VA.
B. The Evidence Offered at Trial did not Establish, Beyond a Reasonable Doubt that the Appellant Intentionally Misrepresented Facts to the VA.
C. The Evidence Offered at Trial did not Establish, Beyond a Reasonable Doubt that the Alleged Misrepresentations were Material.
D. The Evidence Offered at Trial did not Establish, Beyond a Reasonable Doubt that the Alleged Misrepresentations were Made with the Intent to Defraud.
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.

CONCLUSION

The Appellant submits that his constitutional rights were violated in this case, and that he was unjustly convicted and sentenced. The Appellant asks that this court look at the facts of this matter, and apply the correct standards of review, to reach a reasonable and fair conclusion in which the Appellant’s convictions and sentence are vacated. In the alternative, the Appellant requests that this Court remand the case for re-trial, pending the conclusion of the Appellant’s administrative appellate measures.

[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.]

[Note: Much of the latter portion of this text has been previously published, and since published has undergone minor editing.]

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