Honor the fallen, fight for the living
On Veterans Day, 2022, thank you to our veterans, patriotic men and women, ours.I thank Robert Walsh of Battle Creek, Michigan, (U.S. Army, 101st Airborne Division, RVN 1971-72).
Bob Walsh is a brilliant, honor-bound attorney working out of Michigan, dedicated to veterans harmed by bureaucrats — often dishonorable denizens populating halls of government.
What is it that drives so many bureaucrats, polar opposites of veterans whom we salute? Those who shit their days away at the V.A. Office of Inspector General, for example, defaming and persecuting our people, our veterans, whom we should be respecting.
Bob Walsh never understood these people.
Bob shot me over quotes for a review of We Gotta Get Out of This Place - The Soundtrack of the Vietnam War, (University of Massachusetts Press, 2015).
Walsh talked about killing, war, brotherhood, loyalty and music the way most of us talk about college and love.
"I was in Vietnam late, 101st Airborne, C 2/502nd Infantry, Sgt.,
September 71-Janaury 72, infantry patrolling in the I Corps area. So no
music except when we came back to Camp Eagle.
"Then I was at Qui Nhon in II Corps, with a security company. So music
was around all the time. AFRTS (Armed Forces Radio and Television
Service) (Good Morning, Vietnam) actually played some good stuff. The
music was of the time and the time of the music. As the Vietnam War
dragged on music made some of the strongest and most effective
statements. Politics and events informed the art.
"By the way, I was
against the Vietnam war (it was stupid) but it was the only
war we had, and I volunteered to go when I did not have to. It was fun,
it was real, but it was not real fun."
---
I last heard from Bob Walsh a few weeks back and Walsh was advocating for another veteran, now dead, screwed over by another VA bureaucrat and the U.S. Dept of Justice in Texas.
Justin Perez-Gorda died in federal custody pending trial in Feb 2022. Perez-Gorda is a combat veteran wounded in the Afghanistan War. He suffered a debilitating spinal injury, diagnosed and treated by numerous medical professionals, after being blown up by an IED in Afghanistan on January 5, 2011.
Perez-Gorda lived 33 years.
When he arrived at a federal facility after ridiculous fraud charges, his wheel chair was taken from him and thrown in a dumpster. He was denied clean catheters associated with his spinal condition.
Perez-Gorda died of Sepsis after 108 days in pre-trial custody, having been denied any meaningful and competent medical care.
He was guilty of nothing but raising his right hand and swearing to defend the Constitution.
The United States government then went after his widow, Josephine Casandra Perez-Gorda.
This year's White House Proclamation on Veterans Day, 2022 addresses women like Josephine Casandra Perez-Gorda, reading in part: "In respect and recognition of the contributions our veterans and their families, caregivers, and survivors have made to the cause of peace and freedom around the world, the Congress has provided (5 U.S.C. 6103(a)) that November 11 of each year shall be set aside as a legal public holiday to honor our Nation’s veterans."
This is no longer the case as the United States government targets not just veterans, but also caregivers.
Josephine Casandra Perez-Gorda elected not to testify at her trial. She was scared, angry and alone. The VA and DOJ said she is guilty of "overstating" the very spinal injury that led to her husband's death.
Said Bob Walsh, "In VA benefits fraud cases I am firmly convinced that it is essential for the defendant to testify. After all the evidence is in and as the last witness."
"The facts, medical, and expert evidence and testimony in this case were all overwhelming and in her favor. But the defendant failed to close the deal with the jury," concluded Walsh.
Josephine Casandra Perez-Gorda's (Josie) sentencing is scheduled for Dec. 20. Her Husband is dead, dishonored by lies, and she faces federal prison.
This prosecution was premature as the defendants were not afforded the administrative due process mandated by 38 CFR 42.1 by the VA, which is supposed to conduct a proper criminal investigation, and which would cleared both the husband and wife.
The VA Office of Inspector General provided their standard misleading and incomplete testimony to the federal grand jury. The local U.S. Attorney's office is often more than willing to carry out the bad work of VA bureaucrats.
The widow, Josie, of Justin Perez-Gorda is now branded as a fraud and convicted felon.
Just another family destroyed by unlawful and shocking conduct of the VA Office of Inspector General.
Since 1986 over 5,000 veterans and their families have suffered similar abuse, Bob Walsh said.
Happy Veterans Day, and to far too many: So sorry you were fucked over by the very country you defended.
Madness. A motion is pending before the Court, concluding: "The trial evidence actually showed that Josie believed that each of her
statements were true at that time and place of the utterance; that Josie
was reacting as a spouse/caregiver to Justin’s ongoing pain, permanent
TBI mental condition, PTSD mental condition, and schizophrenia in each
instance; and that Josie largely repeated words she had read in a VA
decision or heard a doctor say."
The Dec. 20 sentencing hearing is before the United States District Court for the Western District of Texas, San Antonio Division, United States of America.
Honorable United States District Judge Fred Biery is presiding.
Below is a reproduction of the motion for judicial acquittal in this case that is only now drawing national interest among the veterans' bar and veterans' advocates.
Motion for Judgement of Acquittal, Pursuant to Rule 29
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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF TEXAS
SAN ANTONIO DIVISION
UNITED STATES OF AMERICA,
Plaintiff,
v.
JOSEPHINE PEREZ-GORDA, )
)
Defendant.
DEFENDANT’S MOTION FOR JUDGMENT OF ACQUITTAL
PURSUANT TO RULE 29
CRIM. NO: SA-17-CR-845(2)-FB
TO THE HONORABLE UNITED STATES DISTRICT JUDGE FRED BIERY:
COMES NOW defendant Josephine Perez-Gorda by and through her undersigned counsel, filing this motion for judgment of acquittal pursuant to Rule 29(c) and would show the Court as follows:
Rule 29(c)(2) provides that if a jury has returned a guilty verdict, the court may set aside the verdict and enter an acquittal. See F.R.Crim.P. 29(c)(2). A Rule 29 motion for judgment of acquittal “challenges the sufficiency of the evidence to convict.” United States v. Medina, 161 F.3d 867, 872 (5th Cir. 1998). The issue is “whether, viewing the evidence in the light most favorable to the verdict, a rational [finder of fact] could have found the essential elements of the offense charged beyond a reasonable doubt.” United States v. Boyd, 773 F.3d 637, 644 (5th Cir. 2014) (citing Jackson v. Virginia, 443 U.S. 307, 319 (1979); United States v. Miller, 588 F.3d 897, 907 (5th Cir. 2009)). “The standard does not require that the evidence exclude every reasonable hypothesis of innocence or be wholly inconsistent with every conclusion except that of guilt,
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provided a reasonable trier of fact could find that the evidence establishes guilt beyond a reasonable doubt.” United States v. Loe, 262 F.3d 427, 432 (5th Cir. 2001). In this case, the evidence presented by the Government did not establish guilt beyond a reasonable doubt.
Defense counsel originally began to present a detailed Rule 29 argument at the close of the Government’s evidence, but was cut short by the Court, who suggested a written motion, and the Rule 29 was denied. A defendant may renew such motion within 14 days after a guilty verdict. See F.R.Crim.P 29(c)(1). The court decides whether the evidence is sufficient to sustain a conviction. See F.R.Crim P. 29(a). In this case, the jury came back in approximately four or four and 1/2 hours, suggesting that the jury did not go through many of the approximate 100 defense exhibits presented. A subsequent Rule 29 motion at the end of the trial was also swiftly denied. The instant written Rule 29 motion, therefore, constitutes a renewed motion.
THE SECOND SUPERSEDING INDICTMENT
The Second Superseding Indictment, sought April 13, 2022 was brought within 2 ½ months after the death of Justin Perez-Gorda who was in prison undergoing a competency evaluation. It charged widow Josephine Perez-Gorda with devising a scheme with her soldier husband to defraud the Veteran’s Administration (VA) by overstating the severity and extent of Justin’s disability. The evidence showed Justin had been blown up by an IED in Afghanistan on January 5, 2011 and was operated on in theater. The trial further showed that Justin suffered from mental conditions including Traumatic Brain Injury (TBI), Post-traumatic Stress Disorder (PTSD), and Schizophrenia which plagued his recovery from his physical conditions of incomplete paraplegia and neurogenic bladder, among many others. Justin died in federal prison in late January 2022, alone and uncared for, from complications of using a catheter to relieve a neurogenic bladder
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condition which the VA said Justin never had. (Def. Exh. 19-C)
The jury was instructed that Josie could become an agent for Justin, yet the VA, itself an agency, was never held responsible for the knowledge of its own employees.
Paragraph 5 of the Introduction to the Second Superseding Indictment stated “Participants in the Veterans Affairs Disability Compensation program receive medical examinations and rehabilitative services at Veterans Affairs facilities. Health care providers at these facilities rely on accurate and truthful reports from participants to determine a course of treatment and to confirm eligibility for various aspects of the health care services provided by the Veterans Administration.” Subjective words like these can never be proven beyond a reasonable doubt because patients can only tell doctors the truth as patients know it at that time and place. Of course, every injured American soldier also certainly has the corresponding right to expect his medical providers to competently review his medical record so that every patient visit to a VA employee does not become a version of a “Groundhog Day” movie.
As a matter of law, the VA’s own total and complete incompetence led to Justin’s faulty medical care, and ultimately, led to the second superseding indictment involving this severely injured soldier and his wife utilizing only certain particularly selected facts while completely ignoring the context surrounding those facts. The November 10, 2011 requested letter from Dr. Trbovich is but one example of the VA’s incompetence and this biased fact selection. On September 8, 2011, Justin participated with VA employee Karrie Reinecke in a driving test. The VA therefore knew that Justin could drive for short time periods since September 8, 2011. Karrie Reinecke’s note was transmitted to, and specifically immediately received by, VA employee Dr. Gary Campbell, Chief of Spinal Cord Injury, and became part of the permanent VA medical records for Justin (Def. Exh. 17-B, and p. 3). On June 14, 2011, a physical therapy note from VA
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employee Denise Nance had stated that Justin could walk from the car inside a building from the handicap parking area. (Def. Exh. 15-S, p. 1, and p. 5). Nance made the choice,1 not to immediately copy anyone, but the record nonetheless became part of the permanent VA medical file for Justin.
These two VA records, among others, were therefore available to Dr. Michelle Trbovich on November 10, 2011, when she saw Justin as a patient for the first time. Had Dr. Michelle Trbovich bothered to take the time to review medical records prior to or during the appointment, she would have seen that Justin was driving short distances and walking short distances, but still needed a letter for car adaptive devices due to the fatigue factor noted by Reinecke. Therefore, the letter sought by Josie from Dr. Trbovich, with the requested words required by the VA, which Josie knew from two previous denials (Def, Exh. 6-C, Def. Exh.6-D), would certainly have made sense to a more conscientious, experienced, and prepared doctor. (Def Exh 18-D). Instead, we are here now.
The Alleged VA Scheme to Defraud
We turn now to the second superseding indictment. The Government set out approximately 15 paragraphs of acts which comprised the alleged VA scheme to defraud. The Counts in the Second Superseding Indictment that incorporated the alleged VA fraud scheme are Counts 1-4, Count 5, Count 6, Count 14, Count 15, Count 16, and Count 17. Each of the acts in the alleged VA fraud scheme were not proven by the Government beyond a reasonable doubt and cannot be the basis for conviction in this case.
Note 1 Testimony at trial indicated that VA employees would have to specifically decide to copy someone on their note that was placed in the VA record. VA Employees only did so when they felt that another VA employee should be immediately advised of the situation.
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Paragraph One of the alleged VA Scheme to Defraud and Count 6 refer to the couple being granted a stipend pursuant to the Caregiver Support Program. On January 22, 2013, the medical record of Alisa Hartfield Cordero shows that she wrote down the phrase “permanent bilateral” which she testified that Josie said to her2 (Def. 12-A). Hartfield Cordero testified that she typed words down as they were said to her. Dr. Raymond Topp testified in the defense case, however, that “permanent bilateral,” without more, was a phrase that meant nothing. The evidence therefore showed that Josie was jumbling phrases that she had heard doctors say and had read in VA decisions: the words “permanent neurologic injury that makes it impossible to use his legs” were previously used by Dr. Raymond Topp on November 15, 2011 (Def. Exh. 5A) and the words “Pt now has permanent neurological injury of his bilateral lower extremities with loss of lower extremity strength precluding him from driving a car independently” were previously used by Dr. Michelle Trbovich on November 10, 2011 (Def. Exh. 18-D). Additionally, a January 18, 2012 rating decision stated, referring to Justin Perez-Gorda, “[t]his is the first time an examiner determine (sic) that you had permanent loss of use of your bilateral legs.” (Gov’t Exh. 1-H). The Government cannot prove beyond a reasonable doubt that Josie made a false representation on January 22, 2013 because she uttered a meaningless phrase repeating what she had heard from doctors and VA raters. Under such circumstances, the Government also could not prove beyond a reasonable doubt that Josie acted willfully with bad purpose to disobey law or with a specific intent
Note 2 Josie also indicated that Justin had limited mobility, could not cook, could not dress himself, could not plan his daily activities due to his severe mental deficits of TBI and PTSD. This is Paragraph 7 of the Alleged VA scheme to defraud and also Count 14. The trial proved that these were all true statements at that time and place. Justin certainly had limited mobility due to pain; he would forget items on the stove due to TBI and PTSD; she would help him dress his legs; and she need to help him plan his daily activities due to TBI and PTSD. The couple was clearly admitted into the Caregiver Support program due to the TBI and PTSD mental health conditions. The Government did not prove beyond a reasonable doubt that Josie’s statements at that time were actually false.
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to defraud.
Furthermore, Josie’s utterances in this regard were not material. The testimony of Alisa Hartfield Cordero confirmed that an unidentified Department of Defense (DOD) doctor and Dr. Michelle Trbovich were involved in the decision to put the couple in the Caregiver Support Program at a particular Tier level.
3 The testimony showed that the unidentified DOD doctor and Dr. Michelle Trbovich relied on Justin’s medical records to place him in the program at the Tier 3 level. There was no evidence that the doctors materially relied on Josie’s garbled phraseology. Further, Dr. Michelle Trbovich testified that she had already decided in on November 10, 2011 that Justin did not need help with Activities of Daily Living.4 Accordingly, Trbovich was the only identified specific doctor involved in the decision to let the couple into the caregiver program. Trbovich had already evaluated Justin twice in person (Def. Exh, 18-E, Def. Exh. 18-H) by that time and also had previous VA records available to her indicating that Justin could drive and walk.
Obvious and utter incompetence by Dr. Trbovich and the unidentified DOD doctor with respect to the review of medical records resulting in a Tier 3 designation should not result in jail time for a patient or caregiver. As a matter of law, Josie’s words could not possibly have been, and certainly were not, proven to be material beyond a reasonable doubt to the Tier 3 decision
3 The evidence showed that Tier Levels were based on the amount of care needed for a patient. The highest amount of care needed resulted in a Tier 3 determination.
4 In fact, when the November 16, 2015 decision was made to kick the couple out of the Caregiver Support Program, the VA specifically referenced Michelle Trbovich’s November 10, 2011 note that Justin did not require help with his ADL’s. Justin was therefore clearly allowed into the program due to his mental TBI and PTSD deficiencies, but later removed from the program due to his alleged physical abilities which Trbovich had assessed four years ago on Justin’s first patient visit. In a nutshell, the absolutely proven incompetent, disjointed and incoherent care provided by the VA also contributes to the reasonable doubt in this case.
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made by Dr. Michelle Trbovich and the unidentified DOD doctor5.
Of course, Josie’s statements to Alisa Hartfield Cordero regarding Justin’s mental deficiencies due to Traumatic Brain Injury (TBI) and Post-Traumatic Stress Disorder (PTSD) were all true. Dr. Ouaou and Dr. Bigler, both presented in the defense case, made it clear that: 1) Justin suffered from a permanent TBI until the day he died, 2) that TBI and PTSD affected each and every one of his interactions with Josie and his medical providers, and 3) that his severe mental conditions affected both his activities of daily life and how he processed pain. The record reflected repeatedly that the couple was accepted into the caregiver program due to Justin’s mental condition (Def. Exh. 12-B, Def. Exh. 12-C). That much was abundantly clear. The trial evidence also showed that a person could be compensated at a Tier 3 level if he had a severe enough mental impairment. The Government’s evidence was therefore insufficient to prove this alleged paragraph of the VA scheme and Count 6 beyond a reasonable doubt.
Paragraph 2 of the alleged VA Scheme to Defraud refers to the traumatically brain injured Justin allegedly falsely reporting to a physician that his wife assisted him with 90 percent of ADLs on November 10, 2011. That physician was Dr Michelle Trbovich, the same person who immediately did not believe Justin, telling him at that time that it was untrue, and that he needed to do these things for himself. Trbovich essentially testified that sometimes spouses tried to do too much for their injured soldier, but ultimately the spouse help was not good for the veterans. Dr. Trbovich was a named decisionmaker for the Caregiver Support Program, who had
5 Had the Tier level been properly evaluated by Dr. Trbovich and the unidentified DOD doctor after a competent review of Justin’s medical records (and even the slightest memory by Trbovich of her two in person examinations), we wouldn’t be here. All of Josie’s actions as a caregiver would have been deemed appropriate by the VA, including her well-deserved vacations with her daughters.
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immediately assessed Justin differently at the first November 10, 2011 appointment; therefore, Justin’s words regarding ADL’s on November 10, 2011 were never actually material in any way. Because Trbovich immediately discounted Justin, and the VA later used Trbovich’s own November 10, 2011 decision regarding ADLs to kick the couple out of the Caregiver Support Program on November 16, 2015, the Government did not prove beyond a reasonable doubt that Justin’s words on November 10, 2011 were actually material to any decision at all.
Paragraph 3 of the alleged VA Scheme to Defraud refers to Justin’s application for Automobile Adaptive Equipment filled out by Justin on November 15, 2011. The defense proved that the words “permanent neurologic injury that makes it impossible to use his legs” were previously used by Dr. Raymond Topp on November 15, 2011 (Def.-Exh. 5A) and the words “Pt now has permanent neurological injury of his bilateral lower extremities with loss of lower extremity strength precluding him from driving a car independently” were previously used by Dr. Michelle Trbovich on November 10, 2011 (Def. Exh. 18-D). Accordingly, the traumatically brain injured Justin filled out that application for Automobile Adaptive Equipment using the words that he had heard from doctors. The Government cannot prove beyond a reasonable doubt that Justin knew, at the time he filled out the application, that the words were false. Two doctors had already affirmed those words. Additionally, the testimony and records of VA employee Karrie Reinecke made clear that, due to fatigue at longer distances, Justin would need to use adaptive devices. (Def. Exh. 17-B). Paragraph 3 of the alleged VA Scheme to Defraud cannot be proven beyond a reasonable doubt.
Paragraphs 4, 5, and 6 of the alleged VA Scheme to Defraud refer to the traumatically brain injured Justin participating in a December 29, 2011 C&P exam. Dr. Sanders, who performed the
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examination, testified that he did not remember Josie being there. The Government’s consistently misguided argument that a caregiver/spouse who appears at a medical appointment becomes fully responsible for what a patient says certainly did not apply to Dr. Sanders’ exam. There was no proof beyond a reasonable doubt that Josie was present at that exam.
Paragraph 8 of the alleged VA scheme to Defraud refers to the traumatically brain injured Justin telling a physician on March 11, 2013 that he walked around the home wearing braces and holding onto furniture and walls for support and requested a cane. (Gov’t Exh. 1-M). There was no proof presented at trial, that around that date and time, that Justin did not walk around the home that way. There was absolutely no proof that Justin made a false statement on March 11, 2013. The Government, either through testimony or exhibits, did not prove beyond a reasonable doubt that Justin did not do that when he was home. The evidence presented at trial was clear that Justin, day to day, was limited by pain and his TBI and PTSD mental conditions. The Government did not prove this paragraph of the alleged VA Scheme to Defraud beyond a reasonable doubt.
Paragraph 9 (same as Count 15) of the alleged VA Scheme to Defraud states that Justin and Josie told a physical therapist on April 10, 2013 that Justin could no longer walk and had not been walking since February of 2013. The April 10, 2013 encounter was recorded in a note. The note did not clearly indicate who spoke the alleged words (Def Exh. 15-W). The Government was also confused. Count 15 charged Josie, but states that “he” advised a physical therapist6. The evidence throughout the trial actually indicated that Justin’s mobility was indeed limited by pain as well as his TBI and PTSD. It was also clear from the evidence that the VA doctors expected
Note 6 Despite the prosecutor’s exhortations to the contrary, mere presence at a doctor’s appointment does not make one a co-conspirator or an aider and abetter.
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patients to power through pain; that to the VA, pain did not actually affect walking—it only affected the will to walk. Of course, common sense indicates that people don’t express themselves that way; rather, people say they cannot walk due to pain.
In fact, the evidence overwhelmingly showed that the traumatically brain injured Justin was indeed limited by pain and did not want to (could not) walk. The statement that Justin “had not been” walking since February, 2013 was therefore a true statement, never proven false by the Government beyond a reasonable doubt. The paragraph also references a false display of strength. The same mental conditions that caused this soldier to put a gun to his wife’s head in 2012 and suffer subsequent involuntary commitment in a VA facility in October, 2014 show there is reasonable doubt whether to believe this injured soldier “falsely displayed” a level of strength during an exam in April, 2013. The Government also could not prove a “false display” of strength beyond a reasonable doubt because the evidence showed that Justin’s PTSD and TBI mental deficits caused him to be completely non-cooperative with medical providers. The Government therefore could not prove beyond a reasonable doubt that the alleged “false display” was not actually an effect caused by Justin’s permanent TBI and PTSD mental deficits.
Paragraph 10 of the alleged VA Scheme to Defraud refers to Justin refusing to be seen by a Physician’s Assistant (Greg Morton) on September 3, 2015 (sic) and underperforming on a strength test. Paragraph 10 also says that that Josie coached Justin what to say. The medical record from September 2, 2015 stated “Veteran more alert and talkative than in the past couple of visits (over a year’s time period) He answered the questions or portions of the questions, where in the past, he would usually have his wife provide all but the basic interactions” (Gov’t Exh. 1-V, p. 10, 12). Furthermore, the same exhibit (Gov’t Exh. 1-V, p.10) completely contradicts the notion
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that Josie was coaching Justin: “there were two episodes where the veteran did not directly agree with his wife but appeared uncomfortable with the information his wife provided.” This constitutes yet another example of the Government completely ignoring truthful context to attack a defendant. The word “coached” is nowhere to be found in the exhibit. Rather, the overall evidence showed that Josie was Justin’s best advocate helping her TBI and PTSD plagued soldier husband to navigate the VA. The Government cannot prove beyond a reasonable doubt that Josie “coached” Justin what to say on September 2, 2015 or any other day.
Paragraph 11 of the alleged VA Scheme to Defraud refers to Justin falsely telling a VA Physician’s Assistant that he never walked. The 2014 medical record, omitted by the Government, was put in evidence (Def Exh. 6-AM), and the medical record does not contain a walking reference at all. The September 2, 2015 medical record in evidence (Def. Exh. 14-A) does contain a reference to Justin walking. The exhibit is co-authored by Morton and VA employee Denise Nance and their testimony was unclear as to who was told what by Justin. Review of Exh. 14-A is instructive: “Veteran declined to walk for therapist. No specific reason given…Only a generalized reason of he “did not care” to walk.” Also, “Veteran states he walks inside around the home. Wife clarified he walks more than room to room. Examples she provided were: Walking from the gas pump/parking lot into the convenience store, typically without difficulty or assistance.”7 The Government also never proved that the alleged references were ever transmitted to a decisionmaker, leaving the alleged statements incapable of being relied upon and lacking materiality. The Government cannot prove this paragraph of the alleged VA Scheme to Defraud
Note 7 An October 1, 2015 video (Gov’t Exh 9) merely confirmed Josie’s statement to the VA regarding the type of walking that Justin was doing.
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beyond a reasonable doubt.
Paragraph 12 of the alleged VA Scheme to Defraud claims that on October 6, 2015, Josie falsely told a nurse in the VA’s Caregiver Support Program that her husband could walk “70 feet at most.” The medical note actually stated “Caregiver reports Veteran is able to ambulate about 70 feet but stops to sit down in the middle of the route” (Def. Exh. 8-L). There was no “at most” in the note. Since the word “route” was undefined, the statement captured by the medical note also actually implied that Justin could go another 70 feet after sitting down. The Government could not prove the “at most” part of this paragraph beyond a reasonable doubt.
Paragraph 13 of the alleged VA Scheme to Defraud states that on November 16, 2015, Justin falsely told a physician that the furthest he could walk unassisted was 50 feet by holding onto objects. The physician was Dr. Michelle Trbovich, who showed her tremendous bias by recording her medical note in a Question and Answer format (Def. Exh 18-AA). Review of that day’s complete medical record shows that Justin first tells Trbovich that his walking is only limited by pain, then tells her he can walk “as far as I want.”8 In that moment, Trbovich abandoned her doctor neutrality and, acting as an investigator for the OIG, goaded the traumatically brain injured and PTSD impaired Justin into the alleged statement in paragraph.13
Toward the end of the Q and A, and for good reason, Justin became suspicious of the doctor. A unbiased reading of the full Q and A by a fair and neutral court, shows that the Government cannot prove that the alleged statement was false beyond a reasonable doubt because
Note 8 At that point, the highly educated Trbovich certainly knew she had hurt the OIG investigation, so she decided to push the mentally impaired Justin into a corner, using the phrase “but I thought you said….” This was clearly no longer a neutral doctor trying to help a patient.
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on that date, two conflicting statements were uttered just before the alleged false statement9. Additionally, the TBI and PTSD mentally impaired veteran was goaded into the statement by a doctor turned investigator. The Government unfairly and deceptively selected a statement out of the Q and A record for its second superseding indictment ignoring the clearly conflicting statements made just prior to the selected one. Under these circumstances, as a matter of law, the Government cannot prove that the selected utterance attributed to Justin was actually a false statement beyond a reasonable doubt.
Paragraph 14 (and Count 16) of the alleged VA Scheme to Defraud states that on November 16, 2015, Josie falsely told a program manager (Alisia Hartfield Cordero) that Justin had limited mobility, could not use his feet, and had permanent loss of the use of both feet. (Def Exh. 12-H). Of course, Hartfield Cordero had been told about Justin’s mental deficits and the mental deficits were the reason that the couple were admitted into the Caregiver Support Program. The meeting with Hartfield Cordero was 15 minutes long, according to the note. During closing argument, the prosecutor used the word “implied” when referencing Josie’s alleged statement for Count 16. An “implication” cannot ever prove an alleged representation beyond a reasonable doubt. Despite the fact that Ms. Cordero was careful to record what folks said to her (as she testified), the attributed statements were not in the note. Additionally, November 16, 2015 was the date that the couple was kicked out of the Caregiver Support Program based on Dr. Trbovich’s November 10, 2011 assessment of his physical abilities. At that point, on November 16, 2015, no one at the VA cared
Note 9 On the same date that Justin told Dr. Trbovich that he can walk as far as he wants (and is limited only by pain), the Government presented a video (Gov’t Exh. 10) proving Justin told the truth to Dr. Trbovich. The non-speculative portion of the completely biased neighbor testimony and the KENS-5 TV video also merely confirmed what the VA already knew, that Justin was walking a bit, driving short distances, and doing yard work (Def. 15AA).
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what Josie and Justin said; the decision to remove Justin from VA care had been made. The Government also presented no evidence that the attributed statement was ever transmitted to any decisionmaker. Accordingly, the Government did not prove beyond a reasonable doubt that the alleged “implied” statement was relied upon by anyone, nor did the Government prove that the statement was material to any decision at all. Paragraph 15 refers to an amount received from the VA, but the Government made it clear to the Court and the jury that it was only seeking approximately $174,000 in VA “overpayment.” (Gov’t Exh 20).
For all of the reasons set forth above, the Counts which incorporated the alleged VA Scheme to Defraud (Counts 1-4, Count 5, Count 6, Count 14, Count 15, Count 16, and Count 17) should be dismissed with prejudice because the evidence was not sufficient to support a conviction.
The Alleged Social Security Scheme to Defraud
The Social Security Scheme to Defraud sets out 12 paragraphs of alleged acts which must be proven beyond reasonable doubt. The alleged Social Security Scheme to Defraud is incorporated into Counts 7-13 and Count 18. Paragraph 9 of the alleged Social Security Scheme to Defraud (page 18 of the superseding indictment) links and incorporates all of the paragraphs of the VA Scheme to Defraud, so the failure to prove the VA Scheme to Defraud beyond a reasonable doubt also means that the alleged Social Security Scheme to Defraud also cannot be proven by the requisite standard.
The Government did not prove beyond a reasonable doubt that Justin was able to work
Paragraph 1 of the alleged Social Security Scheme to Defraud states that Justin and Josie falsely represented to Social Security that Justin’s injuries led to conditions that left him unable to work. Testimony revealed that Social Security benefits are provided when someone is unable to
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work. The trial showed that, after he was blown up in Afghanistan, Justin was not able to work due to his permanent TBI, PTSD, and schizophrenia. This was a soldier who held a gun to his wife’s head in August, 2012, was involuntarily committed to a psychiatric hospital in October, 2014, and went to jail in May, 2017 due to his serious and permanent TBI and other mental conditions. These mental conditions affected every area of his life and affected his recovery from incomplete paraplegia and neurogenic bladder. Justin dealt with these physical and mental conditions throughout his short life.
The trial also showed, as a matter of law, that Justin and his family were always entitled to Social Security benefits during the requisite time period. Trial testimony from Dr. Ouaou, Dr. Bigler, and Dr. Wilson indicated that Justin’s TBI, PTSD, and Schizophrenia affected each and every one of his interactions including those with Josie, his medical providers, and the general public. The trial testimony showed Justin’s bizarre behavior such as driving erratically and repeatedly escalating small conflicts into bigger ones. The VA had Justin 70 percent rated for TBI and PTSD due to, among other things “difficulty in establishing and maintaining effective work and social relationships.” (Gov’t Exh. 1-K); (Gov’t Exh. 18). Quite simply, the Government did not, and could not as a matter of law, show beyond a reasonable doubt that Justin was ever able to work during the time period of the Superseding Indictment.
The Government did not prove beyond a reasonable doubt that the alleged statements were actually declarative representations or actually material to the decision.
Paragraphs 4 and 5 of the alleged Social Security Scheme to Defraud state that on March 19, 2012, and March 30, 2012, Josie made a number of false statements on particular forms (Def Exh. 2-A), (Gov’t Exh. 2-B). Though the Social Security forms requested information about how a person’s injuries “affect” whether that person can do certain things, the Government did not use
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the word “affect” in its second superseding indictment, deceptively phrasing Josie’s “claims” as declarative statements. The forms invited checked boxes, but Josie also included partial phrases on the form. Josie included TBI and PTSD as part of her description of her soldier.
Paragraph 6 of the alleged Social Security Scheme to Defraud falsely states that its determination was based on statements made by Josie. The Government did not call a Social Security decisionmaker to the stand. Rather, the Government called only one witness, Kim Belknap with respect to the Social Security counts. Witness Belknap testified that the applications were merely a starting point, even for a simple thing like onset date of injury. She testified that disability medical examiners scoured the records to determine whether someone was actually entitled to benefits and when those benefits would start. According to Belknap, the onset dates and other information in the application merely allowed examiners to focus their inquiry.
The Government did not prove beyond a reasonable doubt that any of Josie’s alleged checked boxes and partial phrases on the March 19, 2012 or March 30, 2012 applications were actually transmitted to, were actually relied upon by, or were actually material to, a Social Security decisionmaker reviewing Justin’s file. The failure to call an actual Social Security decisionmaker meant that materiality was not, and could not, be proven beyond a reasonable doubt. The Counts which incorporated the alleged Social Security Scheme (Counts 7-13 and Count 18) should be dismissed with prejudice because the evidence was not sufficient to support a conviction.
The Government did not prove beyond a reasonable doubt that Josie acted willfully or with the specific intent to defraud.
Furthermore, the Government did not prove beyond a reasonable doubt that Josie did anything willfully or with a specific intent to defraud. The trial proved that pain, TBI, and PTSD affected Justin on any given day and limited his mobility. The evidence also showed that caregiver
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Josie was required to react to Justin’s moods and difficulties with medical providers on any given day. Acting willfully is to do something with bad purpose to disobey or disregard the law (Counts 6, 14, 15, 16, 17, 18). Specific intent to defraud is a conscious knowing intent to deceive or cheat someone (Counts 1-4, 5, 7-13). Navigating the VA’s disjointed system of care with a severe permanent TBI and PTSD mental health conditions along with debilitating physical conditions meant that Justin needed his wife to be his advocate. The testimonial evidence from Dr. Dersh. Alice Canion, and others indicated that Justin needed Josie’s help to communicate with and understand his medical providers.
The trial evidence actually showed that Josie believed that each of her statements were true at that time and place of the utterance; that Josie was reacting as a spouse/caregiver to Justin’s ongoing pain, permanent TBI mental condition, PTSD mental condition, and schizophrenia in each instance; and that Josie largely repeated words she had read in a VA decision or heard a doctor say. The record also indicates that she was just trying to help Justin communicate with his doctors to help him get better. Testimony and evidence presented at trial revealed that Josie was encouraging Justin to go to his medical appointments, but Justin did not want to go. The VA, largely ignoring Justin’s mental conditions, was unbending in working with Justin and Josie to get Justin care. Because the evidence showed that she was a caring spectator to Justin’s myriad mental and physical conditions, the Government could not legitimately prove beyond a reasonable doubt that Josie acted with a specific intent to defraud or acted willfully with bad purpose to disobey the law.
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The Government misled the Court and the jury with its argument that Josie stood by and did not correct Justin during medical provider appointments.
The Government’s argument during the abbreviated Rule 29 at the close of the Government’s case and the Government’s argument to the jury included the fact that Josie attended medical provider appointments but did ever not contradict the mentally impaired Justin when he spoke about his capability to walk. This misguided argument which misled the Court and the jury was not factually correct. The evidence showed that Josie did tell either VA employee Nance or VA employee Morton that Justin walked further than he said he did on September 2, 2015 (Def Exh. 14-A). The Government’s misleading argument to the Court and the jury that a caregiver spouse must be vigilant to correct a patient at a medical provider’s appointment was erroneous, constituted a misstatement of the law, and ultimately led the jury down the wrong path.
The fact that Josie attended many of her husband’s medical appointments was not adequate proof of conspiracy beyond a reasonable doubt. The Government therefore did not prove any agreement between Justin and Josie beyond a reasonable doubt. The trial evidence from Dr. Ouaou, Dr. Bigler, and Dr. Wilson that Justin’s TBI, PTSD, and Schizophrenia affected each and every one of his interactions with Josie and his medical providers, coupled with Justin’s acts of violence toward Josie (gun to head in 2012, involuntary commitment in 2014, and domestic dispute in 2017) make it clear that an agreement (conspiracy) to commit health care fraud could not be proven beyond a reasonable doubt.
While a jury can be fooled by a prosecutor’s argument with respect to a spouse attending medical appointments, a court should not be. “Mere presence at the scene of an event, even with knowledge that a crime is being committed, or the mere fact that certain persons may have associated with each other and may have assembled together and discussed common aims and
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interests, does not necessarily establish proof of the existence of a conspiracy. A person who has no knowledge of a conspiracy, but who happens to act in a way that advances some purpose of a conspiracy, does not thereby become a conspirator.” “Before any defendant may be held criminally responsible for the acts of others, it is necessary that the accused deliberately associate himself or herself in some way with the crime and participate in it with the intent to bring about the crime. Mere presence at the scene of a crime and knowledge that a crime is being committed are not sufficient to establish that a defendant either directed or aided and abetted the crime unless you find beyond a reasonable doubt that the defendant was a participant and not merely a knowing spectator.” The Government’s evidence in this regard was just not sufficient to sustain a conspiracy or aiding and abetting conviction beyond a reasonable doubt.
In conclusion, the Government did not prove the alleged VA Scheme to Defraud beyond a reasonable doubt. The Government did not prove the alleged Social Security Scheme to Defraud beyond a reasonable doubt. All of the Counts in the Second Superseding Indictment incorporated one of the alleged Schemes to Defraud. A rational trier of fact could not find that the evidence established guilt beyond a reasonable doubt on any Count. Accordingly, a judgment of acquittal should be entered for all counts in the Second Superseding Indictment.
Respectfully submitted
__________/s/_________
THOMAS P. MOORE
Attorney at Law
Texas State Bar No. 14378320
800 Dolorosa, Suite 206
San Antonio, Texas 78207
