ptsd Us Atty Biskupic And Va Defied Us Law To Convict Wisconsin Veteran

[allan]

fwd from Colonel Dan

US Atty Biskupic and VA Defied US Law to Convict Wisconsin Veteran

News Release: Contact

Michael Leon

Marketing and Public Relations Consultant

<http://malcontends.blogspot.com/> http://malcontends.blogspot.com/

<mailto:maleon@charter.net> maleon@charter.net

<mailto:maleon64@yahoo.com> maleon64@yahoo.com

(608) 270 9995 (home)

(608) 658 4891 (cell)

6/24/2007

<http://malcontends.blogspot.com/2007/06/us-atty-biskupic-and-va-defied-us-l

aw.html> US Atty Biskupic and VA Defied US Law to Convict Wisconsin Veteran

<http://malcontends.blogspot.com/2007/06/us-atty-biskupic-and-va-defied-us-l

aw.html>

http://malcontends.blogspot.com/2007/06/us...va-defied-us-la

w.html

<http://bp1.blogger.com/_zciesOPE2zA/Rn7kVbawiII/AAAAAAAAAHQ/8Ju1Zmzz_Us/s16

00-h/Airman+Roberts+in+1970X.JPG> by Michael Leon

Madison, Wisconsin-In this Karl Rove/Dick Cheney age of politics when the

governmental machinery is so politicized that Richard Nixon seems a

progressive reformist by comparison, it's not surprising to find the

<http://www.law.com/servlet/ContentServer?pagename=OpenMarket/Xcelerate/View

&c=LawArticle&cid=1176455062969&t=LawArticle> United States Department of

Justice ravaging a Vietnam-era veteran diagnosed with Post Traumatic Stress

Disorder (PTSD).

But many veterans charge the peculiar case of US v. Roberts is a disgraceful

miscarriage of justice even by the contemporary swift-boating standards of

the Bush administration.

Post Traumatic Stress Disorder (PTSD)

In June of 1999, Airman Keith Roberts (1968-71) was granted a disability

rating by the <http://www.va.gov/> US Veterans Administration (VA) after a

12-year, excruciating benefits claim process to which the honorably

discharged American veteran from the northern town of Gillett, Wisconsin was

subjected.

Roberts had been diagnosed with (PTSD) years after he witnessed a fellow

airman killed in a gruesome C-54 aircraft crushing death of fellow Airman

Gary Holland in 1969 while on "line duty" at a Naval Air Facility in Naples,

Italy, and later in the same year was assaulted by the Navy Shore Patrol and

forcefully hospitalized.

Roberts believed that negligence caused Holland's death and that the Navy

then covered it up, blaming the dead rookie Holland who could not defend

himself.

The Vietnam-era veteran had no idea while he was gathering evidence seeking

an earlier retroactive date for his successful VA claim, per the advice of a

<http://malcontends.blogspot.com/2007/05/va-document-contradicts-us-atty-in.

html> Shawano (Wisconsin) Veteran's Service Officer, and jumping through

hoop after hoop, that not only were his existing VA benefits in jeopardy but

his very liberty was in danger.

"The process of gathering evidence to prove PTSD disability is extremely

time-consuming," said Sen. Barrack Obama (D-IL) on August 10, 2005 at a time

when the VA was set to review 72,000 PTSD cases, but backed down under

intense pressure from veterans and democrats. "It requires the compilation

of medical records, military service records, and testimonies from other

veterans who can attest to a person's combat exposure."

In fact, the VA claims process is not just time-consuming, but can be so

frustrating that many vets quit the process, or (

<http://ptsdcombat.blogspot.com/#about> especially those suffering from

PTSD) are thrown into fits of rage directed at the VA itself.

Anger is a euphemism for how Keith Roberts now feels about the VA.

Since March of this year, Roberts has been serving a 48-month sentence (and

his family financially shattered) for alleged wire fraud purportedly

committed in his benefits application process with the VA in an outlandish

VA-benefits-turned-criminal-charges case now before the

<http://www.ca7.uscourts.gov/> U.S. Court of Appeal for the Seventh Circuit

(appellate brief due June 29) which Roberts vows to take to the US Supreme

Court, if necessary.

Among the main charges against Roberts are that he fabricated his role

<http://www.uppitywis.org/new-evidence-in-jailed-vet-case-witness-contradict

s-prosecution-> in trying to rescue Holland and lied about his

<http://www.uppitywis.org/more-dismantlement-of-case-against-jailed-wisconsi

n-veteran> friendship with Holland, both charges demonstrably untrue.

Frustration with the VA

Anger, panic and frustration with the VA drove Keith Roberts to phone the VA

Inspector General's office at Hines, Illinois in November 2003 at which time

Roberts spoke with one Special Agent Raymond Vasil.

Roberts accused the VA of "fraud" as the VA was in the process of

determining the date from which his retroactive disability pay was to become

effective. Adjustments and frequent remanding (sending back for

reconsideration) of cases are common VA practice.

It's not hyperbole to say that many veterans have died awaiting appeal of

their cases.

Vasil (who has no professional law enforcement and VA benefit adjudication

experience) disingenuously told Roberts he would look into the fraud

accusation against the VA, but Vasil appears to have had no intention of

investigating the VA, but rather investigated Roberts who was making waves

at the VA amid his angry accusations.

Throughout the VA investigation the Roberts family was subjected to a

smirking, mocking demeanor by Vasil, the man whose investigation formed the

basis of the later criminal indictment.

Said one hostile veteran advocate, "A cop Vasil is not, just an idiot with a

badge."

VA Federal Law

Veteran-advocacy groups deride the delivery of

<http://news.yahoo.com/s/ap/20070623/ap_on_he_me/coming_home_wounded_5;_ylt=

AlJwh8U3PbUK9J46qM8rtAoE1vAI> health care and disability benefits to our

veterans today as just another example of Bush administration incompetence

in administering government services and entitlements to which it is

ideologically hostile, a la FEMA and disaster relief.

The VA, a large department of government growing under the

<http://www.usatoday.com/news/health/2007-06-23-wounded_N.htm> strain of war

and non-existent administration planning for the consequences of war, is

operating under the authority of specific federal statutes-

<http://ecfr.gpoaccess.gov/cgi/t/text/text-idx?c=ecfr&sid=d741c52f7d5b47cff9

3ecd0ec686fc0a&amp;amp;amp;amp;rgn=div5&view=text&node=38:1.0.1.1.4&idno=38>

Code of Federal Regulations (CFR), Title 38, "Pensions, Bonuses and Veterans

Relief."

Title 38 specifically defines and delineates the processing and delivery of

VA benefits.

In fact,

<http://ecfr.gpoaccess.gov/cgi/t/text/text-idx?c=ecfr&sid=d741c52f7d5b47cff9

3ecd0ec686fc0a&rgn=div5&view=text&node=38:1.0.1.1.4&idno=38#38:1.0.1.1.4.2.7

6.263> Title 38 (3.901 Fraud) also specifically defines "fraud" (what

Roberts is accused of engaging in) as a false or fraudulent act committed in

trying to obtain "any claim for benefits under any of the laws administered

by the Department of Veterans Affairs . "

But Keith Roberts was never accused of committing VA fraud, per se.

Roberts' voluminous C-file, or claims file, well documents Roberts

"stressors" that led to his being granted disability benefits-rendering

accusing Roberts of VA fraud out of the question, so the offended Special

Agent Vasil swiftboated the veteran Roberts.

"Keith Roberts was granted a 100% compensation rate for PTSD from his date

of claim. To grant PTSD, we need both a) a current diagnosis and b) a

verified in-service stressor. We found not only a stressor, but an

in-service diagnosis for Airman Roberts," said a source at the

<http://www.visn12.med.va.gov/Milwaukee/> Clement J. Zablocki VA Medical

Center in Milwaukee who e-mailed the

<http://a1135.g.akamai.net/f/1135/18227/1h/cchannel.download.akamai.com/1822

7/podcast/MADISON-WI/WXXM-FM/Lee070607.mp3?CPROG=PCAST&MARKET=MADISON-WI&NG_

FORMAT=talk&SITE_ID=2104&STATION_ID=WXXM-FM&PCAST_AUTHOR=Madison> Lee

Rayburn radio show in Madison after a broadcast of a show on Roberts.

In other words, to an experienced and objective VA civil servant, Roberts'

claim was an air-tight.

But Roberts was to become a cautionary tale for Vietnam-era veterans who

apply for PTSD disability benefits and carp about the slow and often hostile

nature of the VA bureaucracy after Special Agent Vasil's investigation of

Roberts in an as yet unknown manner came to the attention of the US

Department of Justice and <http://www.usdoj.gov/usao/wie/> US Atty Stephen

Biskupic (Eastern District of Wisconsin).

Biskupic, not known for his

<http://www.uppitywis.org/biskupics-target-in-georgia-thompson-case-jim-doyl

e> prosecutorial discretion and hungry to augment his win/loss record, took

over the case and secured criminal indictments against Roberts in 2005.

Special Agent Raymond Vasil

After Roberts contacted the VA Inspector General's office and spoke to

Vasil, Vasil reportedly became upset with Roberts making the fraud

accusations and seized Roberts' VA claims file from the VA regional office

in Milwaukee, according to a document in Roberts' VA file dated Dec. 12,

2003.

What appears to have transpired is that Roberts hounded the VA to

distraction and when he accused the VA of outright fraud, Vasil retaliated

against this Vietnam-era veteran for seeking retroactive PTSD-related

disability benefits-occurrences by Vietnam-era veterans that are also

politically unpopular with the

<http://www.epluribusmedia.org/features/20060206PTSD_pt3.html> American

Enterprise Institute and the

<http://thinkprogress.org/2007/02/15/aei-bush-white-house/> Bush

administration.

It is in this context that Roberts was reportedly argumentative and

insulting to the VA, accusing the VA of fraud.

"[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 the source at the

<http://www.visn12.med.va.gov/Milwaukee/> Clement J. Zablocki VA Medical

Center in Milwaukee who e-mailed the

<http://a1135.g.akamai.net/f/1135/18227/1h/cchannel.download.akamai.com/1822

7/podcast/MADISON-WI/WXXM-FM/Lee070607.mp3?CPROG=PCAST&MARKET=MADISON-WI&NG_

FORMAT=talk&SITE_ID=2104&STATION_ID=WXXM-FM&PCAST_AUTHOR=Madison> Lee

Rayburn radio show in Madison in early June about the Roberts affair. "I'd

have to say that you guys are TOTALLY (uppercase in the original) right

about Roberts' conviction being bullshit ..."

On August 16, 2004, the VA halted the benefits being paid to Roberts based

upon Vasil's investigation; Roberts appealed the decision on September 14,

2004, and was indicted seven months later.

US Attorney Steven Biskupic

As Roberts' appeal was being adjudicated in the VA, US Attorney Steven

Biskupic stepped in and subsequently secured an indictment on mail fraud on

April 26, 2005 under

<http://www.usps.com/websites/depart/inspect/usc18/mailfr.htm> Title 18

United States Code 1341 (mail fraud).

But the indictment on mail fraud involved no investigation from the

<http://www.usps.com/postalinspectors/fraud/welcome.htm> Postal Inspector's

office, as is usual in mail fraud cases.

"Biskupic really pissed in someone's pool when he indicted on mail fraud

with no investigation from the Postal Inspector," said a source close to the

Roberts' defense network.

Without explanation from Biskupic's office, the mail fraud indictment was

superseded some four months later in September 2005 when Biskupic secured an

indictment on wire fraud under

<http://caselaw.lp.findlaw.com/casecode/uscodes/18/parts/i/chapters/63/secti

ons/section_1343.html> Title 18 USC 1343; this time with no input from the

FBI or US Treasury Department, as is usual in wire fraud indictments.

The only law enforcement agency used in the investigation was the VA

Inspector General's office, not a professional law enforcement agency, but

an office that operated vindictively in the person of Special Agent Vasil

and was run at the executive level by Secretary Jim Nicholson, a former

Republican National Committee chairman with no veteran advocacy experience,

in an administration taking its cues from the

<http://www.dartcenter.org/articles/headlines/2004/2004_03_11a.html>

veterans' benefits-hostile American Enterprise Institute scholar, Dr. Sally

Satel.

Title

<http://ecfr.gpoaccess.gov/cgi/t/text/text-idx?c=ecfr&sid=d741c52f7d5b47cff9

3ecd0ec686fc0a&amp;amp;amp;amp;rgn=div5&view=text&node=38:1.0.1.1.4&idno=38#

38:1.0.1.1.4.2.76.267> 38 Code of Federal Regulations, Section 3.905 (a)

Jurisdiction)

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.

The Title

<http://ecfr.gpoaccess.gov/cgi/t/text/text-idx?c=ecfr&sid=d741c52f7d5b47cff9

3ecd0ec686fc0a&rgn=div5&view=text&node=38:1.0.1.1.4&idno=38#38:1.0.1.1.4.2.7

6.267> 38 Code of Federal Regulations, section 3.905 (a) Jurisdiction)

statute reads: "At the regional office level . the Regional Counsel is

authorized to determine whether the evidence warrants formal consideration

as to forfeiture."

Robert Walsh, the appellate attorney for Roberts and a former VA staff

attorney, blasted the criminal prosecution as well as the VA denial of

benefits for its lack of review by VA counsel, per Title 38.

"The local VA Inspector General going directly to the U.S. Attorney without

any review by VA attorneys appears to be unprecedented and is a violation of

(Title)

<http://ecfr.gpoaccess.gov/cgi/t/text/text-idx?c=ecfr&sid=d741c52f7d5b47cff9

3ecd0ec686fc0a&rgn=div5&view=text&node=38:1.0.1.1.4&idno=38#38:1.0.1.1.4.2.7

6.267> 38 Code of Federal Regulations, section 3.905.

"The U.S. Attorney prosecuting a case such as this without a proper

investigation by the F.B.I. or U.S. Treasury is outrageous. It is contrary

to the Department of Justice guidelines for such cases. Failure to follow

those well-thought out procedures is unwise. So we arrive at this bizarre

outcome.

"When Congress passed the

<http://www.vetapp.uscourts.gov/about/History.cfm> Veterans Judicial Review

Act which became law in 1988 they created a special court to review disputes

over veterans' benefits, the U.S. Court of Appeals for Veterans Claims

(CAVC). No other court was given jurisdiction over these claims, and that

court has not yet ruled on the reduction of benefits suffered by Mr.

Roberts. If the CAVC rules in favor of Mr. Roberts he will be in prison

convicted of fraud for accepting benefits payments that he is fully and

legally entitled to."

Biskupic has not spoken publicly on why his office had not awaited the

adjudication of the benefits process before seeking indictments for alleged

fraudulent statements made by Roberts in his claims, and why Biskupic

avoided Veteran Fraud, and indicted on mail fraud and then wire fraud.

Title 38 Code of Federal Regulations, Section 3.905 (b) Fraud

The VA is also required, by federal statute, to notify a veteran if he or

she is declared to be fraudulently presenting information to the VA.

The Fraud statute reads:

(b) Fraud or treasonable acts. Forfeiture of benefits under §3.901 or §3.902

will not be declared until the person has been notified by the Regional

Counsel . of the right to present a defense. Such notice shall consist of a

written statement sent to the person's latest address of record setting

forth the following:

(1) The specific charges against the person;

(2) A detailed statement of the evidence supporting the charges, subject to

regulatory limitations on disclosure of information;

(3) Citation and discussion of the applicable statute .

Roberts was never notified by the Regional Counsel that he was suspected or

accused of engaging in fraud.

Said a source close to the defense network: "The VA statute requires the

criminal justice system to stay out of the matter until a FINAL

administrative agency decision is in place. That will not happen at the VA

until Roberts is done at the Supreme Court. The VA reduction of benefits is

under appeal, and will be for some time. So, if they believe in the fraud,

why the rush for Biskupic to jump in? Keith is not a killer posing a danger

to the public; he is a veteran who simply will not be getting his benefits

that he deserves."

Roberts was caught in a situation where he angered the VA Inspector

General's office which knew that Roberts could never be convicted of VA

fraud, so they summarily denied his benefits, and then somehow communicated

the case circumstances to US Atty Biskupic who charged Roberts with postal

fraud and then with wire fraud using the denial of benefits (under appeal

per federal statute) as evidence of criminal fraud.

So before and after Special Agent Vasil was scheming to charge Roberts with

fraudulently presenting his VA claim, and Roberts' liberty became

endangered, the VA never notified Roberts through the Regional Counsel or

otherwise that his forfeiture was asserted by the VA Inspector General to be

based upon fraud.

US Atty Biskupic never addressed the statutory imperative that Roberts

should have been so notified by the VA Regional Counsel during the

investigation, the indictment and prosecution.

This would appear to raise serious due process considerations that may

result in the overturning of Roberts' conviction by the Seventh Circuit,

known for its intellectual heft, though leaning to the right, aside from the

fact that Roberts is innocent of not being at the scene of his friend

Holland's death.

Criminal Trial

The criminal proceedings included the misrepresentation of the laws and

regulations governing veterans' disability benefits claims procedures and

the military service of Roberts to the jury.

The defense claims that the government withheld hundreds of photographs and

documents in their possession from the defense which would have proven that

Mr. Roberts did not commit fraud.

Roberts was forced to defend himself in federal court by proving that he was

present at his duty station on the flight line in Naples, Italy on February

4, 1969 when Airman Gary Holland was killed while performing maintenance on

a C-54 aircraft.

The prosecution produced no witness who testified that Mr. Roberts was not

present for duty on that day.

The prosecution produced no witness or document which refuted that the

aircraft hanger where Holland was killed was Roberts' duty station.

Several witnesses testified that general quarters was sounded, as Roberts

claimed. The prosecution produced no evidence that Roberts failed to respond

to general quarters.

In fact, Roberts received a "

<http://malcontends.blogspot.com/2007/05/military-document-corroborates-jail

ed.html> Special Enlisted Personnel Performance Evaluation" (the military

equivalent of a pat on the back for the then-young airman) two days after

the death of airman Holland.

The position of the VA and the US Atty Biskupic is that Mr. Roberts was not

present, and therefore his VA disability claim is based on fraud.

"Where were you on February 4, 1969? Can you prove it?" asks Delores

Roberts, Roberts' wife.

Questions for US Atty Biskupic

It is clear that the VA violated its own statuary mandates, but questions

remain for the US Atty's office that prosecuted Roberts.

Did the Secretary of the Veteran's Administration give US Atty Biskupic

authorization by delegation of authority to prosecute Keith Roberts before

the exhaustion of his administrative remedies under Title 38 CFR?

Did US Atty Biskupic know that the Board of Veteran's Appeals had determined

in prior decisions that Roberts' statements could not be used, as a matter

of law, to verify a stressor in order to grant service connection for PTSD?

Did US Atty Biskupic know that the VA claim process is supposed to be

non-adversarial?

Where in Title 38 does it state that the DOJ can take jurisdiction away from

the Veterans' Administration before the VA has completed its review of the

veteran's benefits, including the review in the Court of Appeals for

Veteran's Claims?

With whom at the DoJ and the VA did Biskupic communicate before arriving at

his decision to seek indictments?

Roberts and his family await answers and justice.

Cases to be adjudicated:

· U.S. v. Roberts, U.S. District Court for the Eastern District of

Wisconsin, Docket 05-CR-118

· U.S. Court of Appeals for Veterans Claims docket 05-2425

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

rpwalsh@sbcglobal.net.

###

Michael Leon

Marketing and Public Relations Consultant

http://malcontends.blogspot.com/

maleon@charter.net

maleon64@yahoo.com

(608) 270 9995 (home)

(608) 658 4891 (cell)

[USACID]

I read the appellate decision and also researched what the AUSA said in a press release through other internet sources on Google. I also checked the PACER docket and will download his appellate brief when it hits online. I dont think his appeal will be successful if in fact the Federal Prosecutor had the evidence they had. I think this is the classic case of someone who commits fraud. First they take a little, and then later they take more and more, until someone takes notice and looks into things. And that is how they end up getting caught. It also exemplefies what I would tell my children. If the police come to talk to you, thank them and tell them you will talk with them later in the presence of an attorney, guilty or innocent. Since 9/11 the attitude of police and prosecuters is "lets get them all" and even if you didnt commit the crime accused of, they charge individuals with something else. Almost like they are not leaving without charging someone with something. I was surprised when a friend of mine a local detective in a violent crime unit said that they have a sign in his office which reads "the Bill of Rights ends in a homicide" A lot has changed since I was in CID and a lot, but not all of the VA OIG folks are retired CID agents.

But one thing I couldnt figure out, is why he kept pushing this? Unless there is something I am missing, his attempts to get earlier pay could not be successful. I mean, did he really have a chance at getting an earlier date for benefits? It sucks to be him for his family's sake. I dont feel to sorry for the guy who commits an offense especially one like this. Using someone elses death to perpetrate a fraud is pretty bad in my book. I think it victimizes the family once again.

Just my two cents in a nickel and dime conversation.

[allan]

I know vets that have been in similar situations for real & have fought the VA for yrs to get their claims recognized.

It's no wonder we're stuck with mental health care like Seattle's.

[Ricky]

After reading the BVA decision if they had the evidence stated in it this guy is a goner. Period. The BVA decision, like CID posted, laid out a classic case of fraud. His only hope would have been if he stuck to his story. There is a big difference in a story when at first you are there running around trying to save your best friends live to simply being assigned to the same post.

[LarryJ]

All I have to say is "getta rope".