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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;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;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)
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