Madison, Wisconsin—A Vietnam-era veteran filed his reply brief Monday in his benefits-turned-criminal case before the Court of Appeals for the Seventh Circuit.

Keith Roberts, an honorably discharged Navy veteran (1969-71) from Gillett, Wisconsin, filed his brief arguing that “his constitutional rights were violated in this case, and that he was unjustly convicted and sentenced.”

Since March of this year, Roberts, a veteran with no criminal record, has been serving a 48-month sentence (and his family financially hit with associated costs of some $300,000) for federal wire fraud purportedly committed in his benefits application process with the VA, in a criminal-charges/VA benefits case now simultaneously before the U.S. Court of Appeals for the Seventh Circuit and the Court of Appeals for Veteran Claims (CAVC), where Roberts is pursing his benefits claim.

Court of Appeals for Veteran Claims (CAVC)

Roberts’ case is being litigated as both the U.S. Dept. of Veterans Affairs (VA) and U.S. Dept. of Justice remain under legal and political siege, for alleged corruption and systemic collapses in delivering health care to military veterans.

By federal statute, the CAVC has exclusive jurisdiction to provide judicial review of veterans’ benefits claims.

Roberts’ benefits claim—related to Post Traumatic Stress Disorder (PTSD) diagnosed as occurring because he witnessed and tried to prevent his friend from being crushed to death by a C-54 airplane while stationed at a Naval air base in Naples, Italy 1969, and unrelated assault by the Navy Shore Patrol—granted and then denied, has not yet been decided by the CAVC.

But the Department of Veterans Affairs (VA) after being accused of fraud in 2003 by Roberts ignored the CAVC process and investigated and asked that Roberts be prosecuted for fraud by the US Atty’s office in an apparent retaliatory action against Roberts for tenaciously pursuing his entitlement to VA benefits while accusing the VA of fraud.

As Roberts argues in a CAVC brief:

“The (VA) Secretary appears to have willfully and intentionally circumvented the exclusive subject matter jurisdiction of this Court (CAVC) by failing to follow his own regulations regarding allegations of fraud in benefits claims (38 C.F.R. § 3.905, 14.561). …

“When the (CAVC) 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. He will not be entitled to receive the restored benefits because he is now an incarcerated felon!”

Seventh Circuit Appeal

Roberts’ hope is that the three-member, Seventh Circuit appellate panel will vacate his conviction for lack of evidence (similar to the infamous Georgia Thompson case) and violation of due process, entitling Roberts to the VA disability benefits previously awarded to him should the CAVC court rule in his favor.

Alice in Wonderland

A veteran like Roberts being in the position of arguing in two separate forums (the CAVC and the federal court system) the same set of facts was not the apparent intention of Congress when Congress created the CAVC.

Reads Roberts’ brief:

Just as the government has conceded, “the statutory VA appellate process is the exclusive way to review a claim for benefits . . .” (Appellee’s (Gov.) Brief, at 24). The government incorrectly concludes that the instant (current) criminal prosecution did not constitute such a review. This conclusion is ridiculous. A determination, in the instant (current) case, that the alleged misrepresentations were material, by causing the VA to issue benefits, requires a determination of the Appellant’s entitlement to benefits. Such a determination, as conceded by the government, is subject solely to review under the VA appellate process.

Roberts could conceivably have his benefits restored by the CAVC and yet be in federal prison (where he is now) for receiving his benefits.

Reads the brief:

(T)he convictions which were obtained through the determination of factual issues, which could only be affirmed or reversed by the Court of Appeals of Veterans Claims (CAVC), thereby depriving the Appellant of his due process rights, should be vacated. Any other outcome would be of an absurd “Alice in Wonderland” nature. At the conclusion of the Appellant’s pending appeal before the Court of Appeals of Veterans Claims, it may be determined that he was entitled to the benefits, and yet he would remain in prison for the receipt of those benefits.

[extended excerpts in following text] 

VA Administrative Rules and Due Process

The VA insulates and protects veterans by establishing a layer of procedure before a veteran can be denied VA benefits, much less criminally prosecuted for fraud in seeking benefits.

Roberts makes the argument 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) in effect, and in this case the VA and US Atty’s ignored the VA administrative rules.

Reads Roberts brief:

Clearly, the Department of Justice and the U.S. Attorneys are authorized to make determinations with regard to initiating criminal prosecutions. However, with regard to prosecutions related to benefits claims, certain administrative measures must be taken:

Before a submission is made to the U.S. Attorney in cases involving personnel or claims, the General Counsel, if the file is in Central Office, or 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 (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.
- 38 C.F.R. § 14.561.

Based on the foregoing, the government is incorrect in concluding that the statutes related to veterans claims does not limit the exercise of jurisdiction outside of administrative procedures. In fact, under 38 C.F.R. § 14.561, it is clear that the administrative measures must first be completed before a submission can be made to the U.S. Attorney’s office.

Furthermore, as discussed previously, the statutory VA appellate process is the exclusive way to review a claim for benefits. In the instant case, the Appellant’s appeal is still pending and was pending at the time the criminal prosecution was initiated. The criminal prosecution of the Appellant for matters directly related to the validity of his benefits claim was improper. The Seventh Circuit has determined that district courts are not permitted to meddle in such matters concerning the adjudication of VA benefits. Marozsan v. United States, 852 F.2d 1469 (7th Cir. 1988).

The government contends that their position is supported by 38 C.F.R. §§ 1.200 - 1.205. These sections do discuss the duties of VA employees to report any criminal violations to law enforcement and states that the “VA police and/or the OIG, . . ., will be responsible for notifying the appropriate United States Attorney’s Office . . .” 38 C.F.R. § 1.205. However, this general regulation in no way trumps the specific code section designed to address matters involving benefits claims. Specifically, 38 C.F.R. § 14.561's requirements, listed above, are not trumped. Neither are the specific regulations which are established for instances where fraud is alleged. These regulations, established in 38 U.S.C. § 6103, 38 CFR §§ 3.900-3.905 and 42.1-42.47, afford individuals such as the Appellant with certain due process protections. In the instant case, in violation of these sections, the Appellant was not furnished a target letter and was not informed of his rights as the subject of investigation for criminal activity. Instead of taking these rightful measures, according to administrative requirements, the government instead pursued a premature criminal prosecution, thereby depriving the Appellant of his due process rights.

Lack of Evidence

Among other arguments made by Roberts are that the evidence presented at trial could not reasonably establish wire fraud.

Excerpted from the reply brief is the text of this argument in full:

II. The Evidence Presented at Trial Was Insufficient to Sustain a Conviction for Wire Fraud.

In its brief, the government asserts that “the government produced eight Navy veterans whose testimony clearly refuted” the Appellant’s account of events regarding the Holland incident. (Appellee’s Brief, at 31). The government concluded that the jury could thereby determine that the Appellant’s account was false, that he was not friends with Holland, and that the misrepresentations were material and were used to “cheat the VA out of” money. (Appellee’s Brief, at 31). The government then sets forth several additional “evidences” of the Appellant’s guilt. (Appellee’s Brief, at 32-33).

With regard to the testimony of the other veterans, the Appellant already admitted that certain portions of their testimony did not coincide with the Appellant’s account. Specifically, the other witnesses could not remember an airman giving orders or being arrested. (Cr. 185, Transcript of Jury Trial, 11/6/06, at 113, 114, 164, 181, 189.209, 213, 223, 227, 228, 235, 242, 243; Apx. at 230, 231, 281, 298, 306, 326, 330, 340, 344, 345, 352, 359, 360). They also did not hear anyone say it was more important to save the plane than to save Holland. (Cr. 185, Transcript of Jury Trial, 11/6/06, at 116, 213, 223; Apx. at 233, 330, 340). Some witnesses also did not share the Appellant’s opinion, that the plane could have been raised more quickly, but noted that they heard others say that the plane was not raised as quickly as it should have been raised. (Cr. 185, Transcript of Jury Trial, 11/6/06, 131, 212-213, 228, 229; Apx. at 248, 329, 330, 345, 346).

What the government has conveniently left out is how much of the Appellant’s account was corroborated. As discussed in the opening brief, the following portions of the Appellant’s account were corroborated by others at trial:

1. The Appellant was stationed at the Naval base in Naples, Italy;
2. While the Appellant was stationed in Naples, Gary Holland was
crushed when a safety pin was released, causing the plane he
was working on to fall;
3. An alarm was sounded;
4. Men were placed into the tail section of the plane in order to
make it easier to lift the nose portion of the plane;
5. The idea of puncturing the airplane’s radome in order to lift the
nose and free Holland was rejected;
6. The idea to use forklift to lift the plane was initially rejected and
airbags were considered as a means of lifting the airplane;
7. It took between 10 and 12 minutes to lift the plane;
8. After he was freed from the plane, Holland was given a shot
before being transported to the hospital, where he died the next

Of course, certain portions of the Appellant’s account was neither supported or refuted by the testimony of others, including the claims that the Appellant believed that Holland would have lived had his attempts not been thwarted. (Cr. 186, Transcript of Jury Trial, 11/7/06, at 165; Apx. at __); that the Appellant suffered from nightmares and had problems dealing with stress and authority figures. (Cr. 186, Transcript of Jury Trial, 11/7/06, at 165; Apx. at __); or that the Appellant felt that the investigation into the accident was faulty. (Cr. 186, Transcript of Jury Trial, 11/7/06, at 235; Apx. at 608). There was, of course, no evidence presented at trial that these things were not truly his beliefs and feelings. Additionally, the Appellant’s feelings are substantiated by the attached documentation, which show that the investigation’s conclusions were improper. In fact, the accident should not have been blamed on Holland’s use of the wrong type of locking pin, but rather on the fact that the proper jacks were not in place, as required by the C-54 maintenance manual. (See Attached Exhibit).

Based on the foregoing, the evidence offered at trial did not establish that more than a minor portion of the Appellant’s account was misrepresented to the VA. The minor contradictions were not reliable, as they were based on the memories of events which occurred thirty-seven years prior to the trial. Any reliance on the report that was prepared soon after the Holland incident was also not reliable, since it was not meant to address what happened during the rescue attempt, but rather what had caused the accident, in the first place. Furthermore, the report included interviews of less than half the people who were present at the scene that day. (Cr. 186, Transcript of Jury Trial, 11/7/06, at 150; Apx. at 523).

While the other witnesses testified that they did not remember seeing the Appellant at the scene, that testimony is not sufficient to establish that he was not there, especially given the number of details which the Appellant accurately described. These other witnesses admitted that they did not know the Appellant. (Cr. 185, Transcript of Jury Trial, 11/6/06, at 165, 213, 226; Apx. at 282, 330, 343).

Therefore, it would of course be impossible for them to remember whether or not
the Appellant was present on that day so long ago.

Based on the foregoing, the only misrepresentations which could have been deemed proven beyond a reasonable doubt are the assertions that airbags were used to raise the plane and that the Appellant first suggested running the forks of the forklift through the plane’s radome. Such misrepresentations could not be deemed material to the VA’s determination of the Appellant’s eligibility for benefits.

With regard to the additional evidence, the government first states that the Appellant did not make the PTSD claim until 1994, 25 years after the Holland incident. (Appellee’s Brief, at 32). Apparently, the government feels that this somehow shows that the jury would know that the Appellant was misrepresenting facts, for why else would he not have made a claim much earlier, since “he claimed to have been having nightmares and other symptoms from the incident ever since it happened.” Of course, the government conveniently fails to point out that which was told the jury at trial: that PTSD was not even recognized as a mental disorder until sometime in the 1990s. (Cr. 186, Transcript of Jury Trial, 11/7/06, at 62; Apx. at 435). Therefore, it is rather unremarkable that the Appellant did not make a PTSD claim before the 1990s.

Additionally, the Appellant was not merely diagnosed one time with PTSD. Rather, the Appellant has been examined by at least five different professionals, who have each diagnosed him as suffering from PTSD. Apparently the judge, showing his bias towards the Appellant, also ignored this fact at sentencing, when he determined, on his own, despite the numerous diagnoses by medical professionals, that the Appellant did not really suffer from post-traumatic stress disorder. (Cr. 188, Sentencing Transcript, at 85-88; Apx. at 724-727). Instead, the judge made his own determinations, as did the jury, based upon his own understandings of what could cause this disorder, and determined that the Appellant was not susceptible to the disorder, due to the court’s determination that the Appellant was “a very self-centered man.” (Cr. 188, Sentencing Transcript, at 85-88; Apx. at 724-727).

Second, the government states that the Appellant’s original PTSD claim was based on an event other than the Holland incident. (Appellee’s Brief, at 32). Of course, the government offers no citation to any part of the record to support that statement. The government may be referring to the testimony that showed that Mr. Robert’s initial claim, which did not contain a statement of facts, included a beginning date of December 13, 1969. (Cr. 187, Transcript of Jury Trial, 11/7/06, at 151; Apx. at 524). The government’s assertion that this claim was based upon an incident that occurred on that date is a mischaracterization of the record.

Third, the government asserts that the Appellant’s February, 1994 PTSD claim made no mention of the Holland incident. (Appellee’s Brief, at 32). Indeed, it was clear that the Appellant was not aware of what was required in the claims process, as he did not provide information regarding the stressor, and also did not provide a diagnosis of PTSD. (Cr. 186, Transcript of Jury Trial, 11/7/06, at 155, 157; Apx. at 528, 530). This diagnosis was not provided until October 24, 1997 even though the diagnosis was made in 1994. (Cr. 186, Transcript of Jury Trial, 11/7/06, at 169; Apx. at 542).

The government also notes that information regarding PTSD is readily available at libraries and on the internet, in an attempt to show valid reason to speculate that the Appellant simply went to the library and found out what he needed to tell the VA in order to obtain compensation benefits for PTSD. (Appellee’s Brief, at 33). Of course, the jury had no way of knowing whether the Appellant had access to this information. When asked if such information “is” available, the answer at the 2006 trial was “yes.” (Cr. 186, Transcript of Jury Trial, 11/7/06, at 63-64; Apx. at 436-437). Of course, there was no testimony that such information “was” available in 1994 or at anytime prior to the time of the trial.

While testimony was given at the trial, that information could be obtained from the VA’s national center for PTSD, which was in existence at the time of the 2006 trial, the witness could not say how long that center had been in existence. (Cr. 186, Transcript of Jury Trial, 11/7/06, at 64; Apx. at 437). Clearly the government’s conspiracy theory requires a great deal of speculation and was unsupported by the evidence.

The government also states that VA psychologist Dr. Marcy diagnosed the Appellant based upon what the Appellant told him , assuming the information was truthful. (Appellee’s Brief, at 33). In fact, the doctor relied upon the Appellant’s VA compensation and benefit file, which verified that the Holland incident occurred. (Cr. 186, Transcript of Jury Trial, 11/7/06, at 90-91; Apx. at 463-464). This is important, given the doctor’s further testimony that, in order to diagnose the Appellant with PTSD, he had to determine that the Appellant was exposed to a stressor, and that witnessing a traumatic death, such as the documented death of Holland, could qualify as such a stressor. (Cr. 186, Transcript of Jury Trial, 11/7/06, at 91; Apx. at 464). This shows that the material representations for purposes of diagnosis were that the Appellant witnessed Holland’s death. There was no evidence offered at trial which even implied that the Appellant did not witness this incident - the only thing that is even brought into question is the level of his involvement and his relationship to Holland.

Despite some differences between the statements of facts, which are understandable given the amount of time which passed between the events of 1969 and the trial in 2006, the only facts which it could be argued proven, beyond a reasonable doubt, to have been misrepresented by the Appellant, were the assertions that the airbags were used to lift the plane, and that the Appellant first suggested running the forks of the forklift through the radome in order to lift the plane. Additionally, misrepresentations which were suggested, and to which the jury could have speculated, include: (1) the Appellant’s friendship with Holland (to which only Holland and the Appellant could speak), although the government understandably did not prove this negative beyond a reasonable doubt; (2) the Appellant giving orders at the scene, as several witnesses testified that they did not see an airman acting in this manner, and that it would have been a strange occurrence; (3) Someone saying that it was more important to save the plane than to save Holland; and (4) the part that the Appellant played in the rescue efforts.

There is no evidence that the Appellant intentionally misrepresented such facts, even if it is presumed that his assertions were inaccurate. Indeed, the government’s only attempt to show that the Appellant intentionallymisrepresented these facts was that he may have heard stories around the base and then just pieced the story together. (Cr. 187, Transcript of Jury Trial, 11/8/06, at 94; Apx. at __). The government’s theory, however, would require the jury to determine that people on the base who were present at the scene already had faulty memories of the incident, within months after its occurrence. Of course, if such memories were fully intact, as the government argued they were with the witnesses who testified, and the Appellant relied upon such sources of information, he would have had a complete picture of the events as they unfolded. Certainly, if he was not simply relying upon his own imperfect memory, there would be no departure from the stories of the others. Rather, as it was, the Appellant was relying upon his own imperfect memory, and upon his unique perspective, unique from that of any other person present at the scene. This is what caused the differences in the versions of the story, not an intent to misrepresent the facts.

Facts which were certainly not proven to be misrepresented by the Appellant, and which were considered as part of the Appellant’s claim for benefits, included the following: (1) the Appellant was diagnosed with PTSD, (2) he was present at the scene, with several other identified and unidentified individuals, when an accident occurred involving the Appellant’s friend, (3) people were placed in the tail section of the plane to help raise the nose of the plane, (4) it took 10-12 minutes to raise the plane, (5) after receiving a shot, the man was rushed to the hospital where he died the next day, (6) various options for raising the plane were considered and discarded, (7) the Appellant believed the plane could have been raised more quickly, and (8) the Appellant believed the investigation regarding the accident was flawed. The VA witness could easily have said that, faced solely with the above facts, the VA could have reached a different decision regarding the grant of benefits to the Appellant. Instead, that witness testified that the VA simply requires a claimant to establish an in service stressor and a diagnosis of PTSD. (Cr. 186, Transcript of Jury Trial, 11/7/06, at 111; Apx. at __). The witness further testified that the stressor must be credibly supported by their own findings, which consists of at least a showing that the event occurred and that the claimant was stationed at the location where the event occurred. (Cr. 186, Transcript of Jury Trial, 11/7/06, at 111-112; Apx. at __).

The witness went on to state that, in order to issue benefits for such a claim, every fact of the claimant’s story did not need to be verified - just enough so that “it would feel that his statement was true.” Given this testimony, the VA representative made it appear that no misrepresentation would be material, so long as the VA could verify that the claimed incident (Holland’s death) occurred and that the claimant was stationed at that location at that time (which was verified by the VA).

The witness certainly did not indicate that, without the particular portions of the Appellant’s statement of facts which were contradicted at trial, the VA would not have granted benefits to the Appellant. As such, the government failed to prove, beyond a reasonable doubt, that the alleged misrepresentations were material.

With regard to the Appellant’s intention to defraud, Dr. Donald Dozier testified that he evaluated the Appellant in 2003. (Cr. 188, Transcript of Jury Trial, 11/8/06, at 25-26; Apx. at __). At the conclusion of that evaluation, Dozier diagnosed the Appellant with PTSD. (Cr. 188, Transcript of Jury Trial, 11/8/06, at 32; Apx. at __). In reaching this diagnosis, Dozier considered whether the Appellant was making up facts in order to obtain benefits from the VA, and determined that the Appellant was telling the truth, and that the basis for the claim was valid. (Cr. 188, Transcript of Jury Trial, 11/8/06, at 29-30, 43; Apx. at __).

Based on the foregoing, the only evidence offered at trial regarding whether the Appellant intended to defraud the VA tends to indicate that, in fact, the Appellant did not have that intent, but rather believed what he said to be the truth.

In conclusion, the evidence presented at trial established, at best, that a small portion of the Appellant’s statement of facts was incorrect. There was no evidence that these incorrect portions of that statement were made intentionally or with the intent to defraud. Additionally, the portions of the statement of facts that were shown to be incorrect were not material to the VA’s determination that the Appellant was eligible to receive benefits. Therefore, viewing the evidence in a light most favorable to the government, a rational trier of fact could not have found each of the necessary elements of wire fraud to have been proven beyond a reasonable doubt. As such, the convictions must be vacated.

Next Step

The criminal case is titled U.S. v. Keith A. Roberts (1:05-cr-00118).

The next step in Roberts appeal is oral arguments before a three-judge panel likely to occur sometime in the 2007-08 autumn-winter.

Roberts’ case before the CAVC is: U.S. Court of Appeals for Veterans Claims docket 05-2425.

Legal questions and legal comments can be e-mailed to Robert Walsh at:

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.