Jailed Wisconsin Vet Loses Appeal, VA Claim Still Pending

In a unanimous opinion (07-1546) a three-member panel for the Court of Appeals for the Seventh Circuit has affirmed the controversial conviction on fraud of Wisconsin Navy veteran, Keith Roberts.

The Roberts family is planning on filing a motion for an en banc hearing, a hearing before the full appellate court.

U.S. Atty Stephen Biskupic's office had convinced a jury that Roberts and a deceased Navy airman (Gary Holland) did not have a friendship, and Roberts who was on line duty at a Naval base in Naples, Italy on February 5, 1969 at the time that Holland was crushed to death by a C-54 aircraft, exaggerated his efforts to save Holland, which constituted fraud for which he was convicted in November 2006 by a jury in northern Wisconsin.

Weak grounds for a federal prosecution? These are the grounds on which the government successfully pursued a prosecution against this honorably discharged Navy veteran who served during a combat era.

The Roberts decision is the second blow for veterans' advocates for treatment of veterans with Post Traumatic Stress Disorder (PTSD), following the dismissal of a class-action suit filed by Veterans for Common Sense and Morrison and Foerster, and other parties.

In theory, any veteran both claiming PTSD and unable to verify the circumstances of stressor events is vulnerable to federal prosecution if the U.S. Dept. of Veterans Affairs (VA) and a U.S. Atty decide to proceed in that fashion, though the VA under the Bush administration has been brushed back as its hostile posture against veterans has become public and is seen by veterans advocates as morphing into negligence and incompetence.

Affirming the July 2006 conviction of Roberts, the decision stated that "the criminal prosecution is independent of the administrative review process," rejecting a key argument by Roberts who is concerned that he can continue to serve in prison for receiving VA benefits that the he is legally entitled to receive.

In an administrative development, the day after the Seventh Circuit's opinion was issued, July 7, 2008, Roberts on July 8 was granted his motion for oral arguments of his VA claim before a three-judge administrative panel of the Court of Appeals for Veterans Claims (CAVC), over (VA) objection.

The Seventh Circuit's decision recognizes the weakness of the government argument.

"The record might also have supported a jury determination that Mr. Roberts sincerely believed that his statements were true and that he had no intention to defraud the Government," reads the opinion by Justice Kenneth Ripple. But Ripple notes of the guilty verdict, that, "It is beyond our authority to disturb such a finding on appeal."

The hurdle for an appellate court to overturn the judgement of a jury is high.

"The standard of review for sufficiency of the evidence challenges is necessarily 'a daunting one,' ... We shall not 'weigh the evidence or second-guess the jury’s credibility determinations' on appeal,'" reads the opinion, citing legal precedent.

The opinion implies the United States government in the agent of the VA failed to follow VA administrative rules, as Roberts claims, but notes that this legal issue was not raised at the sufficient time by Roberts.

In his reply brief, Mr. Roberts for the first time mentions 38 C.F.R. § 14.561, which provides that “[b]efore a submission is made to the U.S. Attorney in cases involving personnel or claims, the General Counsel . . . or the Regional Counsel . . . will first ascertain that necessary administrative or adjudicatory (forfeiture (see Pub.L. 86-222; 73 Stat. 452), etc.), action has been taken; except that in urgent cases such as breaches of the peace, disorderly conduct, trespass, robbery, or where the evidence may be lost by delay, or prosecution barred by the statute of limitations, submission to the U.S. Attorney will be made immediately.” Even if this regulation gave Mr. Roberts some cognizable right to prevent early deferral, arguments raised for the first time in a reply brief are waived.

At the jury trial, Roberts was faced with knocking down the arguments and investigations of the United States Attorney's office and top VA officials who were determined to get Roberts, as veterans' advocates have said since the inception of the Roberts criminal proceedings.

"[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 ..."

The power of the United States government to legally and financially ruin a veteran's family in northern Wisconsin for "tenaciously pursuing a claim for VA benefits" has been confirmed.