DISABLED PTSD VETERAN AND "SHREDDERGATE" WHISTLEBLOWER
STILL IN PRISON AFTER 3 YEARS
By Gordon Duff STAFF WRITER
Who are the victims? Are they the thousands of American dead, the hundreds of thousands of civilians who got in the way or are they the veterans whose files disappeared or who are now waiting to see if the VA infected them with diseases that will bring on a slow suffering death?
Who are the victims? Are they the whistleblowers imprisoned like Keith Roberts or the hundreds of military and government employees who told of falsified intelligence, contract fraud, election rigging and other misdeeds who were fired, blacklisted indicted, jailed or, in a few cases, died mysteriously of "suiciding" or "plane crashes."
Why would the VA and Republican members of Congress, direct the prosecution of a Navy veteran who complained that his records were being altered and destroyed? Roberts has been in prison for 3 years now. His prosecution directed from the highest office in the land, meant as a warning to veterans:
"KEEP YOUR MOUTH SHUT OR WE WILL COME AFTER YOU TOO"
Roberts, a Navy veteran diagnosed by both the VA and indpendent psyciatrists as totally disabled with Post Traumatic Stress, has been in prison for 3 years. His crime? We aren’t really sure, and I have read much of his case file.
I suspect he was too much of a pain in the ass to the Bush VA. His crime? He complained while the wrong president was in office.
The facts? His disability case is still under appeal but he is in jail for "wire fraud."
What was the wire fraud?
He accepted disability payments directly to his bank but complained that the VA had falsified his files.
Is it really that simple?
Yes.
We are going to be discussing his case over the next few weeks. You might ask, "Why haven’t I heard about this case myself?" Google "keith roberts" and start reading. If, after checking, you aren’t afraid, you lack basic common sense.
The VA can and will jail any veteran, even if it involves violating federal procedures, withholding evidence, lying in court and falsifying evidence.
Be afraid. Be very afraid:
From Roberts appeal to the Supreme Court of the United States:
NO.
In The
Supreme Court of the United States
KEITH A. ROBERTS,
Petitioner,
v.
THE UNITED STATES OF AMERICA,
Respondent.
On Petition for Writ of Certiorari to the United
States Court of Appeals for the Seventh Circuit
PETITION FOR WRIT OF CERTIORARI
RONALD A. BERRIDGE, ESQ.
Counsel of Record
5009 BRONSON BOULEVARD
PORTAGE, MI 49024
PHONE: (269) 903-2555
FAX: (269) 962-9592
Counsel for the Petitioner
Becker Gallagher · Cincinnati, OH · Washington, D.C. · 800.890.5001
December 15, 2008
ROBERT P. WALSH, ESQ.
TWO WEST MICHIGAN AVE.
SUITE 301
BATTLE CREEK, MI 49017
PHONE: (269) 962-9693
FAX: (269) 962-9592
Counsel for the Petitioner
i
QUESTIONS PRESENTED FOR REVIEW
A. Whether it is a denial of a veteran’s due process
rights to require him to answer a criminal
indictment alleging the same misconduct which
served as the basis for the denial of veterans’
benefits, where the appeal of the decision of the
Department of Veterans Affairs is still pending
before the United States Court of Appeals for
Veterans Claims.
B. Whether the Seventh Circuit Court of Appeals
erred in concluding that the evidence presented at
trial was sufficient to sustain a conviction for wire
fraud, when the government had failed to establish,
beyond a reasonable doubt, the necessary elements
for such a charge.
C. Whether the Seventh Circuit Court of Appeals
erred in finding that Mr. Roberts’ right to due
process was not violated by the government’s
withholding of material information.
ii
TABLE OF CONTENTS
QUESTIONS PRESENTED FOR REVIEW . . . . . . i
TABLE OF CONTENTS . . . . . . . . . . . . . . . . . . . . . ii
TABLE OF AUTHORITIES . . . . . . . . . . . . . . . . . . vi
INTRODUCTORY PRAYER . . . . . . . . . . . . . . . . . . 1
OPINIONS BELOW . . . . . . . . . . . . . . . . . . . . . . . . 1
JURISDICTION . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
STATUTORY PROVISIONS INVOLVED . . . . . . . 1
STATEMENT OF THE CASE . . . . . . . . . . . . . . . . 5
STATEMENT OF THE FACTS . . . . . . . . . . . . . . . 8
REASONS FOR GRANTING THE PETITION . . 15
A. The Seventh Circuit Court of Appeals Erred
in Failing to Find that it is a denial of a
veteran’s due process to require him to
answer a criminal indictment alleging the
same misconduct which served as the basis
for the denial of veterans’ benefits, where
the appeal of the decision of the Department
of Veterans Affairs is still pending before the
United States Court of Appeals for Veterans
Claims . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
1. The Court of Appeals Erred by Failing to
Address the Issue at Bar . . . . . . . . . . . 19
iii
2. The Court of Appeals Erred by Relying
on 38 C.F.R. §§ 1.200-05 to conclude that
the district court properly denied the
Petitioner’s motion to dismiss for lack of
jurisdiction. . . . . . . . . . . . . . . . . . . . . . . 20
3. The Court of Appeals Erred in Failing to
find Additional Due Process Violations. 23
4. Conclusion . . . . . . . . . . . . . . . . . . . . . . . 25
B. The Seventh Circuit Court of Appeals erred
in concluding that the evidence presented at
trial was sufficient to sustain a conviction
for wire fraud, when the government had
failed to establish, beyond a reasonable
doubt, the necessary elements for such a
charge . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
1. The Court of Appeals erred in failing to
find that the evidence did not establish,
beyond a reasonable doubt, that more
than a minor portion of the Petitioner’s
account of the incident was
misrepresented. . . . . . . . . . . . . . . . . . . . 29
2. The evidence did not establish, beyond a
reasonable doubt, that the Petitioner
intentionally misrepresented facts to the
VA. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
3. The evidence did not establish, beyond a
reasonable doubt, that the alleged
misrepresentations were material. . . . 33
iv
4. The evidence was insufficient to
establish, beyond a reasonable doubt,
that the alleged misrepresentations were
made with the intent to defraud. . . . . . 35
C. The Seventh Circuit Court of Appeals erred
in finding that Mr. Roberts’ right to due
process was not violated by the government’s
withholding of material information . . . . . 36
CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . 37
APPENDIX
Appendix A: Circuit Court Opinion, dated July
7, 2008 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1a
Appendix B: District Court Judgment, dated
March 6, 2007 . . . . . . . . . . . . . . . . . . . . . . . . . 26a
Appendix C: Circuit Court Order Denying
Rehearing En Banc, dated September 16,
2008 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35a
Appendix D: Circuit Court Order Granting
Petitoner’s Motion for Appointment of Counsel
and for Leave to File Petition for Rehearing En
Banc out of time, dated August 29, 2008 . . . 37a
Appendix E: U.S. Court of Appeals for Veterans
Claims, No. 05-2425, Order setting Oral
Argument, dated August 12, 2008 . . . . . . . . 39a
Appendix F: U.S. Court of Appeals for Veterans
Claims, No. 05-2425, Order for Supplemental
Briefing, dated July 8, 2008 . . . . . . . . . . . . . 41a
v
Appendix G: U.S. Court of Appeals for Veterans
Claims, No. 05-2425, Order setting a 3 Judge
Panel, dated January 31, 2008 . . . . . . . . . . . 45a
Appendix H: U.S. Court of Appeals for Veterans
Claims, No. 05-2425, Order Granting
Petitioner’s Motion for Supplemental Briefing,
and Granting, in part, Petitioner’s Motion to
Supplement the Record on Appeal, dated June
25, 2007 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47a
Appendix I: U.S. Court of Appeals for Veterans
Claims, No. 05-2425, Transmittal of the
Decision of the Board of Veterans’ Appeals,
dated August 31, 2005 . . . . . . . . . . . . . . . . . . 52a
Appendix J: U.S. Department of Veterans
Affairs, Rating Decision Severing Disability
Benefits, dated November 10, 2004 . . . . . . 115a
Appendix K: U.S. Department of Veterans
Affairs, Rating Decision Proposing Severing
Disability Benefits, dated August 16, 2004 129a
Appendix L: Letter, American Legion to U.S.
Department of Veterans Affairs, RE: Violation
of Due Process, Refusal of Agency to Provide
Critical Evidence for Review, and Requesting
notice and a Hearing under 38 C.F.R. § 42.1 et
seq, dated November 10, 2004 . . . . . . . . . . . 142a
vi
Appendix M: Letter, Petitioner to Hon.
Anthony J. Principi, Secretary, U.S.
Department of Veterans Affairs, RE: Violation
of Due Process, Refusal of Agency to Comply
with Controlling Legal Authority, etc., dated
November 22, 2004 . . . . . . . . . . . . . . . . . . . 150a
Appendix N: U.S. Court of Appeals for Veterans
Claims, No. 05-2425, Opening Brief of
Petitioner, dated August 21, 2006 . . . . . . . . 160a
Appendix O: U.S. Court of Appeals for Veterans
Claims, No. 05-2425, Supplemental Brief of
Petitioner, dated July 23, 2007 . . . . . . . . . . 208a
Appendix P: U.S. Court of Appeals for Veterans
Claims, No. 05-2425, First Amended
Supplemental Memorandum of Law of
Petitioner, dated September 9, 2008 . . . . . . 239a
Appendix Q: U.S. Department of Justice, Press
Release, Sentencing of Petitioner, dated
March 5, 2007 . . . . . . . . . . . . . . . . . . . . . . . . 264a
Appendix R: U.S. Court of Appeals for Veterans
Claims, No. 05-2425, Sworn Statement of
Max E. Johnson, U.S. Navy, RE: Death of Gary
Holland, 4 February 1969, Obtained from the
Record on Appeal . . . . . . . . . . . . . . . . . . . . . 267a
vii
TABLE OF AUTHORITIES
Page
CASES
Accardi v. Shaugnessy, 347 U.S. 260 (1954) . . . . 25
Brady v. Maryland, 373 U.S. 83 (1963) . . . . . . . . 37
Brown v. Gardner, 513 U.S. 114 (1995) . . . . . . . . 18
Cage v. Louisiana, 498 U.S. 39 (1990) . . . . . . . . . 27
Cohen v. Brown,
10 Vet. App. 128 (CAVC 1997) . . . . . . . . . . . . 25
In re Winship,
397 U.S. 358, 90 S.Ct. 1068 (1970) . . . . . . 27, 28
Hodge v. West,
155 F.3d 1356 (Fed. Cir. 1998) . . . . . . . . . . . . 24
Kyles v.Whitley,
514 U.S. 419, 115 S.Ct. 1555,
131 L.Ed.2d 490 (1995) . . . . . . . . . . . . . . . . . . 36
Miranda v. Arizona, 384 U.S. 436 (1966) . . . . 23, 24
Pentecost v. Principi,
16 Vet. App. 124 (CAVC 2002) . . . . . . . . . . . . 25
Roberts v. Peake, 05-2425 (CAVC) . . . . . . . 6, 15, 17
Scarborough v. Principi, 541 U.S. 401 (2004) . . . 17
viii
Service v. Dulles, 354 U.S. 363 (1957) . . . . . . . . . 25
Sims v. Apfel, 530 U.S. 103 (2000) . . . . . . . . . . . . 24
Snyder v. Massachusetts,
291 U.S. 97, 105 S.Ct. 330,
78 L.Ed. 674 (1934) . . . . . . . . . . . . . . . . . . . . . 16
Solesbee v. Balkcom,
339 U.S. 9, 70 S. Ct. 457,
94 L. Ed. 604 (1950) . . . . . . . . . . . . . . . . . . . . . 17
Suozzi v. Brown,
10 Vet. App. 307 (CAVC 1997) . . . . . . . . . . . . 25
United States v. Agurs,
427 U.S. 97, 96 S.Ct. 2392,
49 L.Ed.2d 342 (1976) . . . . . . . . . . . . . . . . . . . 36
United States v. Reynolds,
189 F.3d 521 (7th Cir. 1999) . . . . . . . . . . . . . . 34
United States v. Roberts,
534 F.3d 560 (7th Cir. 2008) . . . . . . . . . . . Passim
Winslow v. Walters,
815 F.2d 1114 (7th Cir. 1987) . . . . . . . . . . . . . . 18
STATUTES
18 U.S.C. § 1341 . . . . . . . . . . . . . . . . . . . . . . . . . . 14
18 U.S.C. § 1343 . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
28 U.S.C. § 1254(1) . . . . . . . . . . . . . . . . . . . . . . . . . 1
31 U.S.C. §§ 3801-3812 . . . . . . . . . . . . . . . . . . . . . 21
38 U.S.C. § 211 . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
ix
38 U.S.C. § 502 . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
38 U.S.C. § 511 . . . . . . . . . . . . . . . . . . . . . . 2, 18, 19
38 U.S.C. § 1975 . . . . . . . . . . . . . . . . . . . . . . . . . . 18
38 U.S.C. § 1984 . . . . . . . . . . . . . . . . . . . . . . . . . . 18
38 U.S.C. § 3701 . . . . . . . . . . . . . . . . . . . . . . . . . . 19
38 U.S.C. § 6102 ( b ) . . . . . . . . . . . . . . . . . . . . . 3, 21
38 U.S.C. § 6103 . . . . . . . . . . . . . . . . . . . . . . . . 4, 23
38 U.S.C. § 7251 . . . . . . . . . . . . . . . . . . . . . . . . . . 19
REGULATIONS
38 C.F.R. §§ 1.200-05 . . . . . . . . . . . . 2, 20, 21, 22, 23
38 C.F.R. § 3.304 ( f ) . . . . . . . . . . . . . . . . . . . . . . . 25
38 C.F.R. § 14.561 . . . . . . . . . . . . . . . . . 3, 21, 22, 23
38 C.F.R. §§ 42.1-42.47 . . . . . . . . . . . . . . . . . Passim
MISCELLANEOUS
U.S. Const. Amend. V. . . . . . . . . . . . . . . . . . . . . . . . 1
Sup. Ct. R. 10 . . . . . . . . . . . . . . . . . . . . . . . . . . 15, 16
Sup. Ct. R. 13.1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Sup. Ct. R. 13.3 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
C. McCormick, Evidence § 321 (1954) . . . . . . . . . 28
1
INTRODUCTORY PRAYER
The Petitioner respectfully requests that a writ of
certiorari be granted to review the judgment and
opinion of the United States Court of Appeals for the
Seventh Circuit entered on July 7, 2008.
OPINIONS BELOW
The judgment of the United States District Court,
Eastern District of Wisconsin, was not reported, but
is included in the appendix. (App. 26a-34a). The
Court of Appeals for the Seventh Circuit decision
(App. 1a-25a) is reported as United States v. Roberts,
534 F.3d 560 (7th Cir. 2008). The Court of Appeals
decision denying the Petitioner’s motion for rehearing
is unreported, but is included in the appendix. (App.
35a-36a).
JURISDICTION
The judgment of the Court of Appeals for the
Seventh Circuit was entered on July 7, 2008. A request
for rehearing was denied by the Court of Appeals on
September 16, 2008. This Petition is timely filed
according to Supreme Court Rules 13.1 and 13.3. The
Court derives jurisdiction from 28 U.S.C. § 1254(1).
STATUTORY AND CONSTITUTIONAL
PROVISIONS INVOLVED
No person shall be . . . deprived of life, liberty,
or property, without due process of law . . .
U.S. Const. Amend. V.
2
. . . the Secretary shall decide all questions of
law and fact necessary to a decision by the
Secretary under a law that affects the provision
of benefits by the Secretary to veterans . . .
Subject to subsection (b), the decision of the
Secretary as to any such question shall be final
and conclusive and may not be reviewed by any
other official or by any court, whether by an
action in the nature of mandamus or otherwise.
38 U.S.C. § 511(a).
The second sentence of subsection (a) does not
apply to–
(1) matters subject to section 502 of this title;
(2) matters covered by sections 1975 and 1984
of this title;
(3) matters arising under chapter 37 of this
title; and
(4) matters covered by chapter 72 of this title.
38 U.S.C. § 511(b)
VA police and/or the OIG, whichever has
primary responsibility within VA for
investigation of the offense in question, will be
responsible for notifying the appropriate United
States Attorney’s Office, pursuant to 28 U.S.C.
535.
38 C.F.R. § 1.205
3
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
(b) Whoever obtains or receives any money or
check under any of the laws administered by
the Secretary without being entitled to it, and
with intent to defraud the United States or any
beneficiary of the United States, shall be fined
in accordance with Title 18, or imprisoned not
more than one year, or both.
38 U.S.C. § 6102 (b)
(a) Whoever knowingly makes or causes to be
made or conspires, combines, aids, or assists in,
agrees to, arranges for, or in any way procures
the making or presentation of a false or
fraudulent affidavit, declaration, certificate,
statement, voucher, or paper, concerning any
claim for benefits under any of the laws
administered by the Secretary (except laws
4
pertaining to insurance benefits) shall forfeit all
rights, claims, and benefits under all laws
administered by the Secretary (except laws
pertaining to insurance benefits).
38 U.S.C. § 6103
38 C.F.R. PART 42 — STANDARDS IMPLEMENTING
THE PROGRAM FRAUD CIVIL REMEDIES ACT
(a) Basis. This part implements the Program
Fraud Civil Remedies Act of 1986, Pub. L.
99-509, 6101-6104, 100 Stat. 1874 (October 21,
1986), to be codified at 31 U.S.C. 3801-3812.
Section 3809 of title 31 U.S.C., requires each
authority head, such as the Secretary of
Veterans Affairs, to promulgate regulations
necessary to implement the provisions of the
statute.
(b) Purpose. This part:
(1) Establishes and provides the only
administrative procedures and actions for
imposing civil penalties and assessments
against persons who make, submit, or present,
or cause to be made, submitted, or presented,
false, fictitious, or fraudulent claims or written
statements to authorities or to their agents, and
2) Specifies the hearing and appeal rights of
persons subject to allegations of liability for
such penalties and assessments.
38 C.F.R. § 42.1
5
38 C.F.R. §§ 42.2-42.47
STATEMENT OF THE CASE
On November 10, 2004, the Petitioner had his
service related disability compensation benefits for
Post Traumatic Stress Disorder (PTSD), terminated by
the U.S. Department of Veterans Affairs for fraud in
the claims process.
On April 26, 2005, the Grand Jury for the Eastern
District of Wisconsin returned an indictment against
the Petitioner. On September 13, 2005, a superceding
indictment was filed, charging the Petitioner with five
counts of wire fraud, in violation of 18 U.S.C. § 1343.
The superceding indictment included the following
factual allegations:
On February 4, 1969, while serving in the United
States Navy, the Petitioner was stationed at Naples,
Italy. While performing aircraft maintenance, an
airman became pinned when the landing gear
collapsed. Attempts to save his life were unsuccessful.
(App. 267a-268a).
It was alleged that, from 1994 to 2004, the
Petitioner devised and participated in a scheme to
defraud the United States Department of Veteran
Affairs (VA) of compensation benefits, through the use
of interstate wire communications. Allegedly, the
Petitioner provided materially false and fraudulent
written and oral information to the VA, claiming to
suffer from post-traumatic stress disorder (PTSD)
based upon his role in the accident. The superceding
indictment further alleged that the VA paid the
Petitioner via electronic funds transfers (EFT)
6
conducted through interstate wire communications.
The indictment alleged that the Petitioner obtained
over $320,000 from the VA.
On September 26, 2005, the Petitioner filed a
motion to dismiss the indictment, asserting that the
United States Court of Appeals for Veteran’s Claims
(CAVC) had exclusive jurisdiction over veterans’
claims and since his appeal was pending before that
Court, (docket number 05-2425) the government had
acted prematurely in prosecuting him for actions
which were still the subject of administrative
proceedings. The district court denied the motion on
October 5, 2005.
On November 4, 2005, the Petitioner filed two
motions to dismiss. The first, based upon double
jeopardy, alleged that VA officials had fraudulently
convinced the government that the VA proceedings
were final, when in fact he still had the opportunity to
appeal the VA’s decision.
The second motion asserted that the government’s
contention that the Petitioner’s compensation benefits
were granted “solely upon” the Petitioner’s allegedly
fraudulent statements was clearly erroneous and
unsubstantiated by the government’s “complete
record”. Both motions were dismissed on May 30, 2006.
On January 13, 2006, the Petitioner filed a motion
for production of favorable information. The Petitioner
also filed a motion for a bill of particulars, seeking, for
one, the disclosure of any documentary evidence the
government intended to introduce at trial. On May 9,
2006, the Petitioner filed another motion to dismiss,
alleging that the charges were premature and intruded
7
upon the authority of another branch of the
government.
The jury trial began on November 6, 2006. At the
conclusion of the government’s case, the Petitioner
moved for a judgment of acquittal, asserting that the
evidence was insufficient to establish that the
Petitioner purposefully made any material
misrepresentations, that the statements were false, or
that he knew the statements were false. On November
8, 2006, the jury returned a verdict of guilty on all
counts.
Following the verdict, a presentence investigation
report (PSI) was prepared. The PSI determined that
the total loss attributable to the Petitioner was
$569,426.90. This amount included the payments that
were made to the Petitioner, as well as what he would
have received, if the requested retroactive amounts
had been paid. The court stated that the Guidelines do
not distinguish between actual and intended loss, and
concluded that it had no problem including in that
calculation the amount of actual loss ($262,943.52) and
the intended loss ($288,391.26). The court adopted the
PSI’s calculation, and concluded that the guideline
sentence range was 46 to 57 months imprisonment.
The Petitioner was sentenced to 48 months
imprisonment and $262,943.52 in restitution.
Judgment was entered on March 6, 2007. (App. 28a,
33a). A notice of appeal was filed on March 9, 2007.
The Petitioner raised the following issues to the
Seventh Circuit:
1. The district court erred in denying the
Petitioner’s motions to dismiss, as the
8
court’s exercise of jurisdiction constituted a
denial of the Petitioner’s right to due
process, due to the pending appeal before the
United States Court of Appeals for Veterans
Claims.
2. The evidence presented at trial was
insufficient to sustain a conviction for wire
fraud.
3. The Petitioner’s right to due process was
violated when the government withheld
material information.
4. The district court erred in applying an
enhancement to the Petitioner’s sentence, as
such was not submitted for proof beyond a
reasonable doubt.
On July 7, 2008, the Seventh Circuit affirmed the
Petitioner’s conviction and sentence. United States v.
Roberts, 534 F.3d 560 (7th Cir. 2008). ( App. 1a-25a).
The Petitioner subsequently filed a petition for
rehearing, which was denied on September 16, 2008.
(App. 35a-36a).
Oral argument was held in the United States Court
of Appeals for Veteran’s Claims on October 23, 2008.
No decision has been issued.
STATEMENT OF FACTS
During the Petitioner’s service in Naples, Italy, on
February 4, 1969, there was an airplane accident.
Gary Holland became trapped in the front main
9
landing gear of a C-54 aircraft. (App. 267a-268a).
Holland was freed, but died the following day.
Jerry Fuchs conducted the official investigation of
the accident and a report was prepared, including
statements from twenty people. At least 30 others
were present at the scene. The record indicates that
approximately 84 military personnel worked in the
hangar where the accident occurred, to include the
Petitioner. There were also civilians assigned to the
work area. The investigation’s purpose was
determining how the accident happened. The
investigation concluded that the accident was caused
by the use of the wrong type of locking pin in the
landing gear. The Petitioner has asserted that the
removal of the aircraft jack stands from underneath
the aircraft was the actual cause of the accident.
In February, 1987, the Petitioner filed a claim for
disability benefits with the VA. The claim was denied.
In October, 1990, the Petitioner renewed his claim for
pension benefits, and added compensation benefits
claims for a military service related knee condition and
hearing loss. These claims were denied. On March 19,
1993, the Petitioner was granted pension benefits
retroactive to November 14, 1990. On August 4, 1993,
the Petitioner filed a claim for acute personality
disorder, which he alleged began on December 13,
1969. That claim was denied.
On March 1, 1994, the Petitioner filed an amended
claim for post-traumatic stress disorder (PTSD). The
claim was denied for lack of supporting evidence of a
stressful event and documentation of a PTSD
diagnosis.
10
On December 27, 1994 the Petitioner filed another
claim, including a statement of facts:
1) In Naples, he was in charge of the line shack,
which was responsible for plane directing and
rescue missions.
2) His friend Holland was crushed when a safety pin
was released, causing a plane to fall.
3) He sounded the alarm, informed a chief petty
officer of the situation, and ordered him to have the
plane lifted with the forklift.
4) After men were placed into the tail section of the
plane, he instructed someone to puncture the
radome of the plane with the forklift and lift the
plane, but a safety officer had him restrained.
5) Airbags were used to lift the plane, taking
approximately 10-12 minutes. The safety officer
said it was more important to save the plane than
to save the man.
6) After the plane was lifted, he broke away, helped
free Holland, and brought him to someone who
gave Holland a shot to revive him. Holland died
the next day at the hospital.
The Petitioner wrote that he believed Holland
would have lived had his efforts not been thwarted.
He had been suffering from nightmares, had problems
dealing with stress and authority figures. The claim
was denied for lack of a diagnosis.
11
On October 24, 1997, the Petitioner provided the
VA with a copy of Holland’s death certificate, and a
PTSD diagnosis. The VA obtained evidence
corroborating the Petitioner’s story, including evidence
that Holland had been crushed in an airplane accident
on February 4, 1969, that it took 10-12 minutes to free
him, and that he died the next day.
The Petitioner was awarded PTSD compensation
on May 19, 1998, with an effective date of August,
1993. The effective date was later modified to July,
1992.
A VA psychologist Dr. Michael Marcy, had
evaluated the Petitioner.
Marcy testified that the Petitioner told him that
the death of a friend during his Navy service resulted
in a distrust of authority. He told Marcy that Navy
leaders did not adequately respond to the accident,
that he was impeded from helping, and that the
investigation was poor. He told Marcy that he thinks
about these things at least three to four times per
week, and has nightmares. Marcy concluded that
because of the death of Holland the Petitioner had
become emotionally and socially isolated, suffered from
intrusive recollections, drank alcohol to forget,
distrusted authority, had problems concentrating and
had suicidal ideations.
Marcy determined that the Petitioner’s ability to
work had been greatly diminished. His concentration
was affected by PTSD. His reliability and productivity
were diminished, and the PTSD caused depression and
anger control difficulties. Marcy’s diagnosis was
12
PTSD. Marcy testified that being a bystander when
Holland was crushed would be a PTSD stressor.
In December 2003, the Petitioner contacted Ray
Vasil, Special Agent with the VA Inspector General in
Chicago. He told Vasil that VA employees in
Milwaukee, Wisconsin, were tampering with his
records.
Vasil met with Mr. Jon Baker, the director at
Milwaukee. Vasil then began to investigate the
Petitioner for fraud. Mr. Vasil obtained the 1969 Navy
report. He traveled to Florida to interview Mr. Fuchs.
He met twice with the Petitioner. Mr. Vasil was the
only witness before the Grand Jury.
The Inspector General concluded that the
Petitioner was not present during Holland’s accident.
(The record confirms that Holland and the Petitioner
attended Navy courses in Tennessee and New Jersey,
then went to Naples. They lived in the enlisted
barracks across the hall from each other. They worked
in the same building for several months prior to the
death of Holland, and they both took the E-4
promotion test on the morning of the 4th.) At trial a
VA representative, Barbara Nehls, testified that the
Petitioner received $262,944.12 more than he should
have, based upon the determination that he was not
entitled to VA disability compensation benefits for
PTSD.
Portions of the Petitioner’s statement of facts
provided to the VA were supported by the testimony at
trial and Vasil’s report. Testimony established that
the Petitioner was stationed at the base at the time of
Holland’s accident. Testimony confirmed that an
13
alarm was sounded, and that Holland was crushed by
the airplane.
Richard McFadden testified that he suggested
using a forklift to lift the plane, and the idea was
rejected. Jack Tankersley operated the forklift, and
was going to puncture the radome to lift the plane, but
was stopped. People were placed in the rear of the
airplane.
Others testified that it took 10-12 minutes to raise
the airplane and that Holland was administered a shot
before being transported to the hospital. Others
testified that they did not remember seeing anyone
from the line shack leading the rescue operation. They
also said that such personnel would not normally be
responsible for rescue operations, which is untrue.
Others stated that the airplane was lifted with a
forklift fitted with slings, and that the airbag-method
was considered, but rejected.
Some testified that the airplane was lifted quickly,
but confirmed that there was talk around the base that
the airplane should have been raised sooner.
A comparison of the reports of Fuchs and Vasil
confirms that everyone who took part in the rescue
was not interviewed. In 1969 the interviewees were
not asked if the Petitioner was present. No list of
witnesses was compiled.
The following facts asserted by the Petitioner were
corroborated by Vasil’s report: (1) Holland’s name; (2)
the make of the airplane; (3) how Holland died; (4) the
14
time of day the accident occurred; and (5) that a shot
was administered to Holland.
Dr. Donald Derozier testified that he evaluated the
Petitioner on March 26, 2003 and diagnosed the
Petitioner as having PTSD. Derozier had considered
whether the Petitioner was lying regarding his
involvement in the incident, in order to obtain VA
benefits, but determined that he was not lying.
On October 15, 2004, the American Legion wrote to
the VA and requested the 38 C.F.R. part 42 procedures
and the Vasil report (App. 142a-149a).
The VA severed the disability benefits of the
Petitioner for fraud on November 10, 2004. (App. 115a-
123a).
On November 22, 2004, the petitioner wrote to the
Secretary of Veterans Affairs, complaining that his
rights under the Fifth Amendment to the U.S.
Constitution had been violated. (App. 150a-159a).
The Petitioner appealed the VA decision. On April
26, 2005, a Grand Jury issued a six count indictment
of Petitioner for mail fraud under Title 18 U.S.C.
§ 1341 based upon six letters that he wrote to the VA
seeking an earlier date for his benefits.
In June of 2005 petitioner required leave of the
District Court to attend a hearing at the Board of
Veterans Appeals in Washington, D.C.. The Board
would not permit the Petitioner to review the Vasil
report. The Board issued a decision on August 26,
2005. (App. 54a-114a).
15
On August 26, 2005, the Petitioner filed a Notice of
Appeal with the U.S. Court of Appeals for Veterans
Claims, (CAVC) docket number 05-2425. Oral
argument was held on October 23, 2008. No decision
has been issued. The Petitioner was convicted in
November of 2006 and sentenced on March 2, 2007.
(App. 264a-266a).
REASONS FOR GRANTING THE WRIT
Under Supreme Court Rule 10, the Court will
review a United States Court of Appeals decision for
compelling reasons. A compelling reason exists when
(a) a United States court of appeals has entered
a decision in conflict with the decision of
another United States court of appeals on
the same important matter; has decided an
important federal question in a way that
conflicts with a decision by a state court of
last resort; or has so far departed from the
accepted and usual course of judicial
proceedings, or sanctioned such a departure
by a lower court, as to call for an exercise of
this Court’s supervisory power;
***
(c) . . . a United States court of appeals has
decided an important question of federal law
that has not been, but should be, settled by
this Court, or has decided an important
federal question in a way that conflicts with
relevant decisions of this Court.
16
S.Ct.R. 10(a). These compelling reasons exist in this
case. The Court of Appeals determined that it was
proper for a criminal prosecution to go forth when such
action was based on allegations of the same
misconduct which served as the basis for the denial of
veterans’ benefits, while the appeal of the decision of
the VA was pending before the U.S. Court of Appeals
for Veterans Claims. This specific question is a matter
of first impression and should be addressed by this
Court. The decision of the Seventh Circuit, in deciding
this issue, conflicts with decisions of this Court on
related matters. The Court of Appeals decision reflects
a departure from the accepted and usual course of
judicial proceedings, thereby calling for the exercise of
this Court’s supervisory power.
A. The Seventh Circuit Court of Appeals
Erred in Failing to Find that it is a Denial
of a Veteran’s Due Process Rights to
Require Him to Answer a Criminal
Indictment Alleging the Same Misconduct
Giving Rise to the Denial of Veterans’
Benefits, Where the Appeal of the Decision
of the Department of Veterans Affairs is
Still Pending Before the United States
Court of Appeals for Veterans Claims.
In evaluating due process claims, an inquiry must
be made as to whether the practice “offends some
principle of justice so rooted in the traditions and
conscience of our people as to be ranked as
fundamental.” Snyder v. Massachusetts, 291 U.S. 97,
105, 54 S.Ct. 330, 332, 78 L.Ed. 674 (1934). As stated
by Justice Frankfurter, due process:
17
embodies a system of rights based on moral
principles so deeply imbedded in the traditions
and feelings of our people as to be deemed
fundamental to a civilized society as conceived
by our whole history. Due process is that which
comports with the deepest notions of what is
fair and right and just.
Solesbee v. Balkcom, 339 U.S. 9, 16, 70 S. Ct. 457, 461,
94 L. Ed. 604 (1950).
The Petitioner asserts that his due process rights
were violated when he was prosecuted on the basis of
a determination of issues which were already pending
determination by the U.S. Department of Veterans
Affairs at the Board of Veterans’ Appeals, (BVA), and
later at the United States Court of Appeals for
Veterans Claims (CAVC). The Petitioner was indicted
on April 26, 2005. A hearing before the BVA in the
benefits appeal was held in Washington, D.C. in June
of 2005. The decision of the BVA affirming the
reduction of his disability benefits is dated August 26,
2005. (App. 54a-114a). An appeal was filed with the
CAVC on August 26, 2005, docket number 05-2425.
(App. 52a-53a). Following briefing (App. 160a-207a)
and supplemental briefing (App. 208a-238a; 239a-
263a) to that court, oral argument was held on October
23, 2008, pursuant to an order dated August 12, 2008.
(App. 39a-40a). The issue at bar in that case is the
Petitioner’s entitlement to the restoration of disability
benefits payments from the VA. No decision has
issued.
The CAVC has exclusive jurisdiction to to conduct
the initial judicial review of decisions regarding VA
benefit claims. Scarborough v. Principi, 541 U.S. 401,
18
413, n.3 (2004); See also Brown v. Gardner, 513 U.S.
114 (1995). In this case a criminal prosecution was
commenced and concluded during the pendency of the
VA appeal process. The Petitioner is incarcerated,
having been convicted of five counts of wire fraud,
(App. 26a-34a), while the CAVC may soon determine
that he was legally entitled to these payments. This
premature prosecution deprived the Petitioner of his
due process rights. It trampled the jurisdiction of the
CAVC, the Court empowered by Congress to review
VA benefits appeals.
Should the Petitioner not prevail at the CAVC, he
still has his appeal of right to the U.S. Court of
Appeals for the Federal Circuit. The Secretary of
Veterans Affairs and the Department of Justice have
circumvented the exclusive jurisdiction of the CAVC.
The matter was not ripe for criminal prosecution.
In Winslow v. Walters, 815 F.2d 1114, 1117 (7th Cir.
1987), the appellate court stated that 38 U.S.C. § 211
deprived federal courts “of the power to alter
determinations made by the VA regarding disability
ratings and entitlements to benefits.” Since that case
was decided, § 211 has been repealed. In its place, 38
U.S.C. § 511 states that “the Secretary shall decide all
questions of law and fact necessary to a decision by the
Secretary under a law that affects the provision of
benefits by the Secretary to veterans . . .” 38 U.S.C.
§ 511(a). The statute further provides that “the
decision of the Secretary as to any such question shall
be final and conclusive and may not be reviewed by
any other official or by any court . . .” Id. The
exceptions to this rule are limited to issues of notice
regarding rulemaking, under § 502, matters related to
insurance under §§ 1975 and 1984, matters arising
19
under § 3701, et seq., regarding housing and small
business loans, and matters covered by 38 U.S.C.
§ 7251, et seq., which involves the jurisdiction,
organization, and procedure for the CAVC. 38 U.S.C.
§ 511(b). Any question of law or fact utilized in the
determination of the Petitioner’s right to VA benefits
was not reviewable by any court other than the CAVC.
1. The Court of Appeals Erred by Failing
to Address the Issue at Bar
The Court of Appeals agreed that both the criminal
case and the benefits appeal “involve the question of
whether Mr. Roberts made false statements in his
veterans’ benefits claims . . .” United States v. Roberts,
534 F.3d 560, 568 (7th Cir. 2008); (App. 13a-14a).
However, the Court of Appeals erred in concluding
that “the district court did not ‘review’ the decision of
the Board of Veterans’ Appeals regarding [the
Petitioner’s] disability rating or entitlement to benefits
. . .” Id. This of course is not the issue which the
Petitioner has presented. The issue is not whether the
district court reviewed the decision of the Board of
Veterans’ Appeals, but rather, that the district court
improperly adopted a non final determination as the
underpinning of the criminal prosecution.
The Petitioner was originally awarded benefits
based on the VA’s reliance on the government
documents which he provided, along with a diagnosis
of PTSD. The Petitioner’s benefits were reduced,
based on, inter alia, a determination by the VA that
his statements regarding in service stress were not
true. (App. 129a-141a). The VA reduced the
Petitioner’s benefits based on the determination that
he had made false statements, when his statements
20
cannot form the basis of an award of PTSD under
controlling VA regulations and law. The criminal case
also involved the question of whether the same
statements were false. The CAVC was reviewing the
issue of whether the VA complied with the relevant
laws and precedents of that Court in determining that
the Petitioner was not entitled to disability benefits
and payments. The Petitioner was simultaneously
facing criminal charges in the district court on the
exact same review, the same historical event, and the
same factual dispute – even though the CAVC had
exclusive jurisdiction to review the VA’s decision.
The Court of Appeals erred in failing to even
address the true issue presented by the Petitioner:
that the criminal prosecution of the Petitioner
constituted an improper review of the VA’s factual
determinations, when the CAVC had the sole
jurisdiction to conduct such review.
2. The Court of Appeals Erred by Relying
on 38 C.F.R. §§ 1.200-05 to conclude that
the district court properly denied the
Petitioner’s motion to dismiss for lack
of jurisdiction.
The Court of Appeals erred in adopting the
erroneous argument presented by the government, and
relying on 38 C.F.R. §§ 1.200-1.205 to conclude that
the criminal prosecution in the instant case did not
violate the Petitioner’s rights, since 38 C.F.R. §§ 1.200-
1.205 requires VA employees to report information
concerning criminal violations to law enforcement
authorities for criminal investigation. Roberts, 534
F.3d at 568; (App. 14a).
21
38 C.F.R. §§ 1.200-1.205 outline the duties of VA
employees to include reporting 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, there are specific
regulations for instances where fraud is alleged.
These regulations, established under 31 U.S.C.
§§ 3801-3812 and 38 C.F.R. §§ 42.1-42.47, afford
certain due process protections, which were not
provided to the Petitioner. If a determination of fraud
is made under that procedure then the criminal
penalty called for under 38 U.S.C. § 6102 ( b ) applies
(fine and imprisonment of not more than one year).
The calculation of any benefits overpayment requiring
restitution must be determined by the Secretary of
Veterans Affairs. The government pursued a
premature criminal prosecution and wrongfully
deprived the Petitioner of his due process rights and
his liberty.
The Petitioner’s benefits were reduced
administratively, based upon a determination that his
statement of facts forming the basis of his claim was
not true. (App. 129a-141a). The VA had not completed
the mandatory internal Agency review required in
benefits cases. See 38 C.F.R. § 14.561:
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
22
1 The Court of Appeals inexplicably refused to consider any
citation to 38 C.F.R. § 14.561. The Petitioner cited to same in
response to the government’s argument regarding the
applicability of 38 C.F.R. §§ 1.200-1.205. The Court of Appeals
stated that “arguments raised for the first time in a reply brief are
waived.” Roberts, 534 F.3d at 568, n. 5; (App. 14a). Of course, the
Petitioner had not presented any such new argument. Rather, the
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.
The Petitioner pursued an appeal before the CAVC,
his only avenue of review of the VA determination
under the laws of the United States. The government
has deprived him of both his liberty and the potential
benefit of that appeal by pursuing a premature
prosecution in the U.S. District Court. The Petitioner
concedes that VA officials are sometimes required to
submit cases to the U.S. Attorney’s office prior to the
exhaustion of such appellate procedures. Such is
provided for in 38 C.F.R. § 14.561, “. . . in urgent
cases such as breaches of the peace, disorderly
conduct, trespass, robbery, or where the evidence may
be lost . . .” (Emphasis added). This provision was not
applicable here. There was no exigency. The VA
benefits in question had already been stopped, and
there was therefore no risk of further harm or loss to
the government during the time necessary to complete
the appropriate administrative procedures.1
23
Petitioner’s argument remained that the CAVC had exclusive
jurisdiction, and by bringing the criminal prosecution, the
government deprived him of the benefit of an appeal to that court.
It was only after the government erroneously argued for the
application of 38 C.F.R. §§ 1.200-1.205, that any citation to
§ 14.561 was necessary.
3. The Court of Appeals Erred in Failing
to find Additional Due Process
Violations.
The Petitioner was denied the due process
protections afforded him by the administrative
procedures in place, which must be followed where
fraud is alleged. These protections are established in
38 U.S.C. § 6103, and 38 C.F.R. §§ 42.1-42.47. The ad
hoc manner used by the VA to investigate and initiate
criminal proceedings against the Petitioner for wire
fraud resulted in a total disregard for his right to due
process. The Petitioner was never furnished a target
letter. He was not permitted to review the Vasil report
at any time until after his indictment. It was not
made available to him during the BVA hearing. The
American Legion wrote to both the Inspector General
and the Director, Compensation and Pension Service,
of the U.S. Department of Veterans Affairs. (App.
142a-149a). He requested a copy of the investigative
report and the notice and opportunity to have a
hearing on the record before an Administrative Law
Judge as provided under 38 C.F.R. §§ 42.1-42.47.
Veterans Law Judges at the Board of Veterans’
Appeals are employees of the agency, and their have
been long standing complaints as to bias and lack of
objectivity in the decisions promulgated by the Board.
The Petitioner was never informed of his rights as a
suspect until he was arraigned in U.S. District Court
24
contrary to Miranda v. Arizona, 384 U.S. 436 (1966).
He was interviewed twice after he was the focus of the
VA fraud investigation. The VA did not inform him of
his rights as the subject of investigation for criminal
activity. Instead of adhering to such administrative
requirements, the government pursued a premature
criminal prosecution. The Petitioner was ordered to
report for a psychiatric examination and was
interviewed twice by the VA investigators after he was
under investigation for fraud without notice of his
rights. He was called in for yet another VA psychiatric
examination after his benefits had been terminated.
He testified under oath at his BVA hearing after his
indictment. He was not notified of his right to counsel,
to adjourn the proceedings, or of any consequences his
testimony might have in his criminal case.
VA benefits proceedings are intended to be exparte
and claimant friendly. See Hodge v. West, 155 F.3d
1356 (Fed. Cir. 1998). They are similar to disability
benefits claims adjudications conducted by the
Commissioner of Social Security. See Sims v. Apfel,
530 U.S. 103 (2000).
Although the VA Inspector General has broad
authority, he still must follow the administrative
procedures in place for individuals such as the
Petitioner. In this case, the Inspector General chose to
ignore those procedures. The actions in pursuing the
criminal prosecution of the Petitioner was certainly
ultra vires. Not only was there never a probable cause
determination made by the VA General Counsel, the
basis for the investigation of the Petitioner by the VA
Inspector General was that “certain inconsistencies”
were found in his VA administrative file. That file was
over 2,500 pages in length at the time the
25
2 This testimony improperly indicates that VA procedures for a
PTSD benefits determination rely upon the factual assertions of
the claimant. Under 38 CFR 3.304(f), medical evidence
diagnosing the condition is required and, unless the claimant was
engaged in combat or was a prisoner of war, the stressor must be
proven by more than uncorroborated assertions by the claimant.
See Pentecost v. Principi, 16 Vet. App. 124, 126-129 (CAVC 2002),
Cohen v. Brown, 10 Vet. App. 128, 138 (CAVC 1987); Suozzi v.
Brown, 10 Vet. App. 307, 309 (CAVC 1997).
investigation was initiated. Had the Petitioner been
afforded the notice, discovery and hearing called for in
38 C.F.R. §§ 42.1-42.47 he is confident that he would
not have been indicted. The government’s intentional
circumvention of the relevant administrative processes
is in direct violation of the principles established by
this Court, which has long recognized that
administrative regulations are to be followed. Service
v. Dulles, 354 U.S. 363, 372 (1957); Accardi v.
Shaugnessy, 347 U.S. 260, 267 (1954).
4. Conclusion
In the instant case, the Petitioner’s compensation
benefits were revoked because the Inspector General’s
report improperly concluded that the Petitioner
misrepresented facts in his claim for PTSD benefits
and that such misrepresentations were relevant to an
award of compensation for service related PTSD. That
is not true. Benefits for non-combat PTSD require
independent corroboration. In reducing the benefits,
the witnesses for the government claimed that the VA
determined that the statement of facts offered by the
Petitioner was not true.2 The veracity of the
Petitioner’s statements are not relevant to the VA
26
PTSD benefits award, they cannot form the basis of
such a determination.
It is probable that the CAVC will reverse the VA’s
decision and restore the Petitioner’s benefits.
The Secretary has informed the CAVC of the
conviction of the Petitioner and now argues that he is
prevented from pursuing his appeal at the CAVC due
to estoppel. Should the CAVC order his benefits
restored, he cannot receive them as he is a convicted
and incarcerated felon.
The U.S. District Court and the U.S. Court of
Appeals for the Seventh Circuit have invaded the
jurisdictional domain of the CAVC in direct
contravention of the express intent of Congress. The
determination by the court below that the criminal
prosecution was within their jurisdiction is contrary to
law. Until a final determination is made by the CAVC
regarding the underlying entitlement to benefits the
matter is not ripe for criminal prosecution.
By circumventing the statutory remedies in place
for mentally ill veterans such as the Petitioner, the
Department of Justice and the trial court have
usurped the jurisdiction of the CAVC and have
deprived the Petitioner of his right to due process and
to a claimant friendly, ex parte adjudication of his
benefits claims. This case presents an unprecedented
situation in which the Petitioner was forced to defend
himself in two entirely separate forums
simultaneously after his financial resources have been
eliminated. The criminal Court’s decision in this
matter is one which will have a far-reaching impact for
the thousands of veterans who are now returning from
27
combat service. The unprecedented number of
criminal prosecutions being initiated by the Secretary
of Veterans Affairs is not in keeping with past
practices or the internal regulations and statutes
which govern that agency. The Petitioner respectfully
requests that this Court grant his petition for a writ of
certiorari so that this matter may be fully briefed and
thus provide future guidance for all those concerned.
B. The Court of Appeals erred in concluding
that the evidence presented at trial was
sufficient to sustain a conviction for wire
fraud, when the government had failed to
establish, beyond a reasonable doubt, the
necessary elements for such a charge.
Federal constitutional law requires that a verdict
be supported by legally sufficient evidence for each
element of crimes alleged. In re Winship, 397 U.S.
358, 90 S.Ct. 1068 (1970). Since the founding of this
country the idea that one cannot be convicted upon
evidence that does not rise to a level beyond a
reasonable doubt has become enmeshed in our
jurisprudence.
Due process rights, such as the need to prove
elements of a crime beyond a reasonable doubt, protect
against errors in fact finding. In Cage v. Louisiana,
498 U.S. 39, 40 (1990), the Supreme Court stated that
the “reasonable doubt standard ‘plays a vital role in
the American scheme of criminal procedure. Among
other things, it is a prime instrument for reducing the
risk of convictions resting on factual error.’”
Furthermore, as noted in Winship, 397 U.S. at 364
(1970), “a society that values the good name and
28
freedom of every individual should not condemn a man
for commission of a crime when there is reasonable
doubt about his guilt.” Winship itself makes clear that
the requirement of proof beyond a reasonable doubt is
grounded upon accuracy concerns:
The requirement of proof beyond a reasonable
doubt has this vital role in our criminal
procedure for cogent reasons. The accused
during a criminal prosecution has at stake
interest of immense importance, both because of
the possibility that he may lose his liberty upon
conviction and because of the certainty that he
would be stigmatized by the conviction.
Id. at 364.
The ‘demand for a higher degree of persuasion
in criminal cases was recurrently expressed
from ancient times, [though] its crystallization
into the formula “beyond a reasonable doubt”
seems to have occurred as late as 1798. It is
now accepted. . . as the measure of persuasion
by which the prosecution must convince the
trier of all the essential elements of guilt.
Id. at 361 (quoting C. McCormick, Evidence § 321, pp.
681-82 (1954)).
To find the Petitioner guilty, the jury was required
to find that the Petitioner “knowingly devised or
participated in a scheme to defraud . . .”, “that the
scheme involved the misrepresentation of a material
matter,” that the Petitioner made such a material
misrepresentation with the intent to defraud, and
that, for the purpose of carrying out the scheme, the
29
Petitioner caused interstate wire communications to
occur.
1. The Court of Appeals erred in failing to
find that the evidence did not
establish, beyond a reasonable doubt,
that more than a minor portion of the
Petitioner’s account of the incident was
misrepresented.
The Court of Appeals stated that the Petitioner
argued “that the Government failed to prove beyond a
reasonable doubt that his statements to the VA
regarding Airman Holland’s death were false”
(Roberts, 534 F.3d at 569) ( App. 15a). The Petitioner
actually argued, and continues to argue, that the
evidence offered at trial did not establish, beyond a
reasonable doubt, that more than a minor portion of
the Petitioner’s account of the incident to the VA was
incorrect.
Much of the Petitioner’s statement of facts to the
VA were corroborated by the government’s witnesses.
The Petitioner claimed that Holland should not have
died, had the accident been remedied properly.
Although the Court of Appeals concluded that
witnesses “testified that the rescue mission had been
orderly and well managed . . .” (Roberts, 534 F.3d at
570); (App. 17a), there was further testimony that
there had been talk around the base that the airplane
should have been raised more quickly.
At best, the testimony at trial left the following
statements unconfirmed: (1) that airbags were used to
lift the plane; and (2) that the Petitioner first
suggested running the forks of the forklift through the
30
radome in order to lift the plane. The Court of Appeals
suggested there was sufficient evidence of other
misrepresentations – such as whether the Petitioner
was present at the scene, and whether the Petitioner
was friends with Holland. Roberts, 534 F.3d at 570;
(App. 17a). However, there certainly was not sufficient
evidence to support these findings. Some witnesses
did testify they did not remember seeing the Petitioner
at the scene and that they did not know the Petitioner
to have been friends with Holland. These witnesses
admitted that they did not know the Petitioner. It is
undisputed that the Petitioner was stationed at the
base at the time in question and worked in the hangar.
It would have been impossible for them to remember
whether the Petitioner was present if they did not
know him. Only Holland could have confirmed his
relationship with the Petitioner.
On the other hand, the trial testimony corroborated
the Petitioner’s claims that
(1) he was stationed at the base;
(2) that Holland was crushed by a plane as a result
of a pin releasing;
(3) that the accident occurred while the Petitioner
was stationed in Naples;
(4) that an alarm was sounded;
(5) that men were placed in the rear of the plane;
(6) that the idea of puncturing the radome was
initially rejected;
31
(7) that it took between 10 and 12 minutes to lift
the plane; and
(8) that Holland was given a shot before being
taken to the hospital where he died the next
day.
Critical portions of the Petitioner’s statement of
facts were neither corroborated nor refuted by those
who testified at trial, including the following
assertions:
(1) that the Petitioner believed Holland would have
lived had his attempts not been thwarted;
(2) that the Petitioner suffered nightmares and had
problems dealing with stress and authority
figures; and
(3) that the Petitioner felt the investigation into the
accident was faulty.
There existed some differences between the
statement of facts provided by the Petitioner and the
trial testimony. That testimony included assertions
that witnesses did not remember an airman giving
orders, that they did not hear anyone say it was more
important to save the plane than to save Holland.
Essentially, some portions of the Petitioner’s
statement of facts was entirely consistent with, and
even corroborated by, testimony offered at trial, while
other portions were inconsistent. This should not be
surprising. The government’s witnesses were
testifying to something which had occurred
approximately 13 years before the Petitioner provided
his statement of facts. The government relied upon
32
the investigative report which was prepared soon after
the incident. The Petitioner was not interviewed for
the investigation. It did not describe the rescue
attempt in great detail. There is no list of
participants.
After over thirty years, it should not be surprising
that the witnesses at trial could not recall the presence
of someone at the incident they never knew.
The Petitioner’s statement of facts contains only a
few inconsistencies. Therefore, to convict the
Petitioner, the jury had to conclude that this minor
portion of that statement of facts constituted a
material misrepresentation, was intentionally
misrepresented, and was made for the purpose of
defrauding the VA.
2. The evidence did not establish, beyond
a reasonable doubt, that the Petitioner
intentionally misrepresented facts to
the VA.
The Court of Appeals failed to make any findings
relative to whether any alleged misrepresentations by
In fact, intentional disinformation is a disgraceful scourge in media today. So to assuage any possible errant incorrect information posted herein, we strongly encourage you to seek corroboration from other non-VT sources before forming an educated opinion.
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In The
Supreme Court of the United States
KEITH A. ROBERTS,
Petitioner,
v.
THE UNITED STATES OF AMERICA,
Respondent.
On Petition for Writ of Certiorari to the United
States Court of Appeals for the Seventh Circuit
PETITION FOR WRIT OF CERTIORARI
RONALD A. BERRIDGE, ESQ.
Counsel of Record
5009 BRONSON BOULEVARD
PORTAGE, MI 49024
PHONE: (269) 903-2555
FAX: (269) 962-9592
Counsel for the Petitioner
Becker Gallagher · Cincinnati, OH · Washington, D.C. · 800.890.5001
December 15, 2008
ROBERT P. WALSH, ESQ.
TWO WEST MICHIGAN AVE.
SUITE 301
BATTLE CREEK, MI 49017
PHONE: (269) 962-9693
FAX: (269) 962-9592
Counsel for the Petitioner
i
QUESTIONS PRESENTED FOR REVIEW
A. Whether it is a denial of a veteran’s due process
rights to require him to answer a criminal
indictment alleging the same misconduct which
served as the basis for the denial of veterans’
benefits, where the appeal of the decision of the
Department of Veterans Affairs is still pending
before the United States Court of Appeals for
Veterans Claims.
B. Whether the Seventh Circuit Court of Appeals
erred in concluding that the evidence presented at
trial was sufficient to sustain a conviction for wire
fraud, when the government had failed to establish,
beyond a reasonable doubt, the necessary elements
for such a charge.
C. Whether the Seventh Circuit Court of Appeals
erred in finding that Mr. Roberts’ right to due
process was not violated by the government’s
withholding of material information.
ii
TABLE OF CONTENTS
QUESTIONS PRESENTED FOR REVIEW . . . . . . i
TABLE OF CONTENTS . . . . . . . . . . . . . . . . . . . . . ii
TABLE OF AUTHORITIES . . . . . . . . . . . . . . . . . . vi
INTRODUCTORY PRAYER . . . . . . . . . . . . . . . . . . 1
OPINIONS BELOW . . . . . . . . . . . . . . . . . . . . . . . . 1
JURISDICTION . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
STATUTORY PROVISIONS INVOLVED . . . . . . . 1
STATEMENT OF THE CASE . . . . . . . . . . . . . . . . 5
STATEMENT OF THE FACTS . . . . . . . . . . . . . . . 8
REASONS FOR GRANTING THE PETITION . . 15
A. The Seventh Circuit Court of Appeals Erred
in Failing to Find that it is a denial of a
veteran’s due process to require him to
answer a criminal indictment alleging the
same misconduct which served as the basis
for the denial of veterans’ benefits, where
the appeal of the decision of the Department
of Veterans Affairs is still pending before the
United States Court of Appeals for Veterans
Claims . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
1. The Court of Appeals Erred by Failing to
Address the Issue at Bar . . . . . . . . . . . 19
iii
2. The Court of Appeals Erred by Relying
on 38 C.F.R. §§ 1.200-05 to conclude that
the district court properly denied the
Petitioner’s motion to dismiss for lack of
jurisdiction. . . . . . . . . . . . . . . . . . . . . . . 20
3. The Court of Appeals Erred in Failing to
find Additional Due Process Violations. 23
4. Conclusion . . . . . . . . . . . . . . . . . . . . . . . 25
B. The Seventh Circuit Court of Appeals erred
in concluding that the evidence presented at
trial was sufficient to sustain a conviction
for wire fraud, when the government had
failed to establish, beyond a reasonable
doubt, the necessary elements for such a
charge . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
1. The Court of Appeals erred in failing to
find that the evidence did not establish,
beyond a reasonable doubt, that more
than a minor portion of the Petitioner’s
account of the incident was
misrepresented. . . . . . . . . . . . . . . . . . . . 29
2. The evidence did not establish, beyond a
reasonable doubt, that the Petitioner
intentionally misrepresented facts to the
VA. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
3. The evidence did not establish, beyond a
reasonable doubt, that the alleged
misrepresentations were material. . . . 33
iv
4. The evidence was insufficient to
establish, beyond a reasonable doubt,
that the alleged misrepresentations were
made with the intent to defraud. . . . . . 35
C. The Seventh Circuit Court of Appeals erred
in finding that Mr. Roberts’ right to due
process was not violated by the government’s
withholding of material information . . . . . 36
CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . 37
APPENDIX
Appendix A: Circuit Court Opinion, dated July
7, 2008 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1a
Appendix B: District Court Judgment, dated
March 6, 2007 . . . . . . . . . . . . . . . . . . . . . . . . . 26a
Appendix C: Circuit Court Order Denying
Rehearing En Banc, dated September 16,
2008 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35a
Appendix D: Circuit Court Order Granting
Petitoner’s Motion for Appointment of Counsel
and for Leave to File Petition for Rehearing En
Banc out of time, dated August 29, 2008 . . . 37a
Appendix E: U.S. Court of Appeals for Veterans
Claims, No. 05-2425, Order setting Oral
Argument, dated August 12, 2008 . . . . . . . . 39a
Appendix F: U.S. Court of Appeals for Veterans
Claims, No. 05-2425, Order for Supplemental
Briefing, dated July 8, 2008 . . . . . . . . . . . . . 41a
v
Appendix G: U.S. Court of Appeals for Veterans
Claims, No. 05-2425, Order setting a 3 Judge
Panel, dated January 31, 2008 . . . . . . . . . . . 45a
Appendix H: U.S. Court of Appeals for Veterans
Claims, No. 05-2425, Order Granting
Petitioner’s Motion for Supplemental Briefing,
and Granting, in part, Petitioner’s Motion to
Supplement the Record on Appeal, dated June
25, 2007 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47a
Appendix I: U.S. Court of Appeals for Veterans
Claims, No. 05-2425, Transmittal of the
Decision of the Board of Veterans’ Appeals,
dated August 31, 2005 . . . . . . . . . . . . . . . . . . 52a
Appendix J: U.S. Department of Veterans
Affairs, Rating Decision Severing Disability
Benefits, dated November 10, 2004 . . . . . . 115a
Appendix K: U.S. Department of Veterans
Affairs, Rating Decision Proposing Severing
Disability Benefits, dated August 16, 2004 129a
Appendix L: Letter, American Legion to U.S.
Department of Veterans Affairs, RE: Violation
of Due Process, Refusal of Agency to Provide
Critical Evidence for Review, and Requesting
notice and a Hearing under 38 C.F.R. § 42.1 et
seq, dated November 10, 2004 . . . . . . . . . . . 142a
vi
Appendix M: Letter, Petitioner to Hon.
Anthony J. Principi, Secretary, U.S.
Department of Veterans Affairs, RE: Violation
of Due Process, Refusal of Agency to Comply
with Controlling Legal Authority, etc., dated
November 22, 2004 . . . . . . . . . . . . . . . . . . . 150a
Appendix N: U.S. Court of Appeals for Veterans
Claims, No. 05-2425, Opening Brief of
Petitioner, dated August 21, 2006 . . . . . . . . 160a
Appendix O: U.S. Court of Appeals for Veterans
Claims, No. 05-2425, Supplemental Brief of
Petitioner, dated July 23, 2007 . . . . . . . . . . 208a
Appendix P: U.S. Court of Appeals for Veterans
Claims, No. 05-2425, First Amended
Supplemental Memorandum of Law of
Petitioner, dated September 9, 2008 . . . . . . 239a
Appendix Q: U.S. Department of Justice, Press
Release, Sentencing of Petitioner, dated
March 5, 2007 . . . . . . . . . . . . . . . . . . . . . . . . 264a
Appendix R: U.S. Court of Appeals for Veterans
Claims, No. 05-2425, Sworn Statement of
Max E. Johnson, U.S. Navy, RE: Death of Gary
Holland, 4 February 1969, Obtained from the
Record on Appeal . . . . . . . . . . . . . . . . . . . . . 267a
vii
TABLE OF AUTHORITIES
Page
CASES
Accardi v. Shaugnessy, 347 U.S. 260 (1954) . . . . 25
Brady v. Maryland, 373 U.S. 83 (1963) . . . . . . . . 37
Brown v. Gardner, 513 U.S. 114 (1995) . . . . . . . . 18
Cage v. Louisiana, 498 U.S. 39 (1990) . . . . . . . . . 27
Cohen v. Brown,
10 Vet. App. 128 (CAVC 1997) . . . . . . . . . . . . 25
In re Winship,
397 U.S. 358, 90 S.Ct. 1068 (1970) . . . . . . 27, 28
Hodge v. West,
155 F.3d 1356 (Fed. Cir. 1998) . . . . . . . . . . . . 24
Kyles v.Whitley,
514 U.S. 419, 115 S.Ct. 1555,
131 L.Ed.2d 490 (1995) . . . . . . . . . . . . . . . . . . 36
Miranda v. Arizona, 384 U.S. 436 (1966) . . . . 23, 24
Pentecost v. Principi,
16 Vet. App. 124 (CAVC 2002) . . . . . . . . . . . . 25
Roberts v. Peake, 05-2425 (CAVC) . . . . . . . 6, 15, 17
Scarborough v. Principi, 541 U.S. 401 (2004) . . . 17
viii
Service v. Dulles, 354 U.S. 363 (1957) . . . . . . . . . 25
Sims v. Apfel, 530 U.S. 103 (2000) . . . . . . . . . . . . 24
Snyder v. Massachusetts,
291 U.S. 97, 105 S.Ct. 330,
78 L.Ed. 674 (1934) . . . . . . . . . . . . . . . . . . . . . 16
Solesbee v. Balkcom,
339 U.S. 9, 70 S. Ct. 457,
94 L. Ed. 604 (1950) . . . . . . . . . . . . . . . . . . . . . 17
Suozzi v. Brown,
10 Vet. App. 307 (CAVC 1997) . . . . . . . . . . . . 25
United States v. Agurs,
427 U.S. 97, 96 S.Ct. 2392,
49 L.Ed.2d 342 (1976) . . . . . . . . . . . . . . . . . . . 36
United States v. Reynolds,
189 F.3d 521 (7th Cir. 1999) . . . . . . . . . . . . . . 34
United States v. Roberts,
534 F.3d 560 (7th Cir. 2008) . . . . . . . . . . . Passim
Winslow v. Walters,
815 F.2d 1114 (7th Cir. 1987) . . . . . . . . . . . . . . 18
STATUTES
18 U.S.C. § 1341 . . . . . . . . . . . . . . . . . . . . . . . . . . 14
18 U.S.C. § 1343 . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
28 U.S.C. § 1254(1) . . . . . . . . . . . . . . . . . . . . . . . . . 1
31 U.S.C. §§ 3801-3812 . . . . . . . . . . . . . . . . . . . . . 21
38 U.S.C. § 211 . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
ix
38 U.S.C. § 502 . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
38 U.S.C. § 511 . . . . . . . . . . . . . . . . . . . . . . 2, 18, 19
38 U.S.C. § 1975 . . . . . . . . . . . . . . . . . . . . . . . . . . 18
38 U.S.C. § 1984 . . . . . . . . . . . . . . . . . . . . . . . . . . 18
38 U.S.C. § 3701 . . . . . . . . . . . . . . . . . . . . . . . . . . 19
38 U.S.C. § 6102 ( b ) . . . . . . . . . . . . . . . . . . . . . 3, 21
38 U.S.C. § 6103 . . . . . . . . . . . . . . . . . . . . . . . . 4, 23
38 U.S.C. § 7251 . . . . . . . . . . . . . . . . . . . . . . . . . . 19
REGULATIONS
38 C.F.R. §§ 1.200-05 . . . . . . . . . . . . 2, 20, 21, 22, 23
38 C.F.R. § 3.304 ( f ) . . . . . . . . . . . . . . . . . . . . . . . 25
38 C.F.R. § 14.561 . . . . . . . . . . . . . . . . . 3, 21, 22, 23
38 C.F.R. §§ 42.1-42.47 . . . . . . . . . . . . . . . . . Passim
MISCELLANEOUS
U.S. Const. Amend. V. . . . . . . . . . . . . . . . . . . . . . . . 1
Sup. Ct. R. 10 . . . . . . . . . . . . . . . . . . . . . . . . . . 15, 16
Sup. Ct. R. 13.1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Sup. Ct. R. 13.3 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
C. McCormick, Evidence § 321 (1954) . . . . . . . . . 28
1
INTRODUCTORY PRAYER
The Petitioner respectfully requests that a writ of
certiorari be granted to review the judgment and
opinion of the United States Court of Appeals for the
Seventh Circuit entered on July 7, 2008.
OPINIONS BELOW
The judgment of the United States District Court,
Eastern District of Wisconsin, was not reported, but
is included in the appendix. (App. 26a-34a). The
Court of Appeals for the Seventh Circuit decision
(App. 1a-25a) is reported as United States v. Roberts,
534 F.3d 560 (7th Cir. 2008). The Court of Appeals
decision denying the Petitioner’s motion for rehearing
is unreported, but is included in the appendix. (App.
35a-36a).
JURISDICTION
The judgment of the Court of Appeals for the
Seventh Circuit was entered on July 7, 2008. A request
for rehearing was denied by the Court of Appeals on
September 16, 2008. This Petition is timely filed
according to Supreme Court Rules 13.1 and 13.3. The
Court derives jurisdiction from 28 U.S.C. § 1254(1).
STATUTORY AND CONSTITUTIONAL
PROVISIONS INVOLVED
No person shall be . . . deprived of life, liberty,
or property, without due process of law . . .
U.S. Const. Amend. V.
2
. . . the Secretary shall decide all questions of
law and fact necessary to a decision by the
Secretary under a law that affects the provision
of benefits by the Secretary to veterans . . .
Subject to subsection (b), the decision of the
Secretary as to any such question shall be final
and conclusive and may not be reviewed by any
other official or by any court, whether by an
action in the nature of mandamus or otherwise.
38 U.S.C. § 511(a).
The second sentence of subsection (a) does not
apply to–
(1) matters subject to section 502 of this title;
(2) matters covered by sections 1975 and 1984
of this title;
(3) matters arising under chapter 37 of this
title; and
(4) matters covered by chapter 72 of this title.
38 U.S.C. § 511(b)
VA police and/or the OIG, whichever has
primary responsibility within VA for
investigation of the offense in question, will be
responsible for notifying the appropriate United
States Attorney’s Office, pursuant to 28 U.S.C.
535.
38 C.F.R. § 1.205
3
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
(b) Whoever obtains or receives any money or
check under any of the laws administered by
the Secretary without being entitled to it, and
with intent to defraud the United States or any
beneficiary of the United States, shall be fined
in accordance with Title 18, or imprisoned not
more than one year, or both.
38 U.S.C. § 6102 (b)
(a) Whoever knowingly makes or causes to be
made or conspires, combines, aids, or assists in,
agrees to, arranges for, or in any way procures
the making or presentation of a false or
fraudulent affidavit, declaration, certificate,
statement, voucher, or paper, concerning any
claim for benefits under any of the laws
administered by the Secretary (except laws
4
pertaining to insurance benefits) shall forfeit all
rights, claims, and benefits under all laws
administered by the Secretary (except laws
pertaining to insurance benefits).
38 U.S.C. § 6103
38 C.F.R. PART 42 — STANDARDS IMPLEMENTING
THE PROGRAM FRAUD CIVIL REMEDIES ACT
(a) Basis. This part implements the Program
Fraud Civil Remedies Act of 1986, Pub. L.
99-509, 6101-6104, 100 Stat. 1874 (October 21,
1986), to be codified at 31 U.S.C. 3801-3812.
Section 3809 of title 31 U.S.C., requires each
authority head, such as the Secretary of
Veterans Affairs, to promulgate regulations
necessary to implement the provisions of the
statute.
(b) Purpose. This part:
(1) Establishes and provides the only
administrative procedures and actions for
imposing civil penalties and assessments
against persons who make, submit, or present,
or cause to be made, submitted, or presented,
false, fictitious, or fraudulent claims or written
statements to authorities or to their agents, and
2) Specifies the hearing and appeal rights of
persons subject to allegations of liability for
such penalties and assessments.
38 C.F.R. § 42.1
5
38 C.F.R. §§ 42.2-42.47
STATEMENT OF THE CASE
On November 10, 2004, the Petitioner had his
service related disability compensation benefits for
Post Traumatic Stress Disorder (PTSD), terminated by
the U.S. Department of Veterans Affairs for fraud in
the claims process.
On April 26, 2005, the Grand Jury for the Eastern
District of Wisconsin returned an indictment against
the Petitioner. On September 13, 2005, a superceding
indictment was filed, charging the Petitioner with five
counts of wire fraud, in violation of 18 U.S.C. § 1343.
The superceding indictment included the following
factual allegations:
On February 4, 1969, while serving in the United
States Navy, the Petitioner was stationed at Naples,
Italy. While performing aircraft maintenance, an
airman became pinned when the landing gear
collapsed. Attempts to save his life were unsuccessful.
(App. 267a-268a).
It was alleged that, from 1994 to 2004, the
Petitioner devised and participated in a scheme to
defraud the United States Department of Veteran
Affairs (VA) of compensation benefits, through the use
of interstate wire communications. Allegedly, the
Petitioner provided materially false and fraudulent
written and oral information to the VA, claiming to
suffer from post-traumatic stress disorder (PTSD)
based upon his role in the accident. The superceding
indictment further alleged that the VA paid the
Petitioner via electronic funds transfers (EFT)
6
conducted through interstate wire communications.
The indictment alleged that the Petitioner obtained
over $320,000 from the VA.
On September 26, 2005, the Petitioner filed a
motion to dismiss the indictment, asserting that the
United States Court of Appeals for Veteran’s Claims
(CAVC) had exclusive jurisdiction over veterans’
claims and since his appeal was pending before that
Court, (docket number 05-2425) the government had
acted prematurely in prosecuting him for actions
which were still the subject of administrative
proceedings. The district court denied the motion on
October 5, 2005.
On November 4, 2005, the Petitioner filed two
motions to dismiss. The first, based upon double
jeopardy, alleged that VA officials had fraudulently
convinced the government that the VA proceedings
were final, when in fact he still had the opportunity to
appeal the VA’s decision.
The second motion asserted that the government’s
contention that the Petitioner’s compensation benefits
were granted “solely upon” the Petitioner’s allegedly
fraudulent statements was clearly erroneous and
unsubstantiated by the government’s “complete
record”. Both motions were dismissed on May 30, 2006.
On January 13, 2006, the Petitioner filed a motion
for production of favorable information. The Petitioner
also filed a motion for a bill of particulars, seeking, for
one, the disclosure of any documentary evidence the
government intended to introduce at trial. On May 9,
2006, the Petitioner filed another motion to dismiss,
alleging that the charges were premature and intruded
7
upon the authority of another branch of the
government.
The jury trial began on November 6, 2006. At the
conclusion of the government’s case, the Petitioner
moved for a judgment of acquittal, asserting that the
evidence was insufficient to establish that the
Petitioner purposefully made any material
misrepresentations, that the statements were false, or
that he knew the statements were false. On November
8, 2006, the jury returned a verdict of guilty on all
counts.
Following the verdict, a presentence investigation
report (PSI) was prepared. The PSI determined that
the total loss attributable to the Petitioner was
$569,426.90. This amount included the payments that
were made to the Petitioner, as well as what he would
have received, if the requested retroactive amounts
had been paid. The court stated that the Guidelines do
not distinguish between actual and intended loss, and
concluded that it had no problem including in that
calculation the amount of actual loss ($262,943.52) and
the intended loss ($288,391.26). The court adopted the
PSI’s calculation, and concluded that the guideline
sentence range was 46 to 57 months imprisonment.
The Petitioner was sentenced to 48 months
imprisonment and $262,943.52 in restitution.
Judgment was entered on March 6, 2007. (App. 28a,
33a). A notice of appeal was filed on March 9, 2007.
The Petitioner raised the following issues to the
Seventh Circuit:
1. The district court erred in denying the
Petitioner’s motions to dismiss, as the
8
court’s exercise of jurisdiction constituted a
denial of the Petitioner’s right to due
process, due to the pending appeal before the
United States Court of Appeals for Veterans
Claims.
2. The evidence presented at trial was
insufficient to sustain a conviction for wire
fraud.
3. The Petitioner’s right to due process was
violated when the government withheld
material information.
4. The district court erred in applying an
enhancement to the Petitioner’s sentence, as
such was not submitted for proof beyond a
reasonable doubt.
On July 7, 2008, the Seventh Circuit affirmed the
Petitioner’s conviction and sentence. United States v.
Roberts, 534 F.3d 560 (7th Cir. 2008). ( App. 1a-25a).
The Petitioner subsequently filed a petition for
rehearing, which was denied on September 16, 2008.
(App. 35a-36a).
Oral argument was held in the United States Court
of Appeals for Veteran’s Claims on October 23, 2008.
No decision has been issued.
STATEMENT OF FACTS
During the Petitioner’s service in Naples, Italy, on
February 4, 1969, there was an airplane accident.
Gary Holland became trapped in the front main
9
landing gear of a C-54 aircraft. (App. 267a-268a).
Holland was freed, but died the following day.
Jerry Fuchs conducted the official investigation of
the accident and a report was prepared, including
statements from twenty people. At least 30 others
were present at the scene. The record indicates that
approximately 84 military personnel worked in the
hangar where the accident occurred, to include the
Petitioner. There were also civilians assigned to the
work area. The investigation’s purpose was
determining how the accident happened. The
investigation concluded that the accident was caused
by the use of the wrong type of locking pin in the
landing gear. The Petitioner has asserted that the
removal of the aircraft jack stands from underneath
the aircraft was the actual cause of the accident.
In February, 1987, the Petitioner filed a claim for
disability benefits with the VA. The claim was denied.
In October, 1990, the Petitioner renewed his claim for
pension benefits, and added compensation benefits
claims for a military service related knee condition and
hearing loss. These claims were denied. On March 19,
1993, the Petitioner was granted pension benefits
retroactive to November 14, 1990. On August 4, 1993,
the Petitioner filed a claim for acute personality
disorder, which he alleged began on December 13,
1969. That claim was denied.
On March 1, 1994, the Petitioner filed an amended
claim for post-traumatic stress disorder (PTSD). The
claim was denied for lack of supporting evidence of a
stressful event and documentation of a PTSD
diagnosis.
10
On December 27, 1994 the Petitioner filed another
claim, including a statement of facts:
1) In Naples, he was in charge of the line shack,
which was responsible for plane directing and
rescue missions.
2) His friend Holland was crushed when a safety pin
was released, causing a plane to fall.
3) He sounded the alarm, informed a chief petty
officer of the situation, and ordered him to have the
plane lifted with the forklift.
4) After men were placed into the tail section of the
plane, he instructed someone to puncture the
radome of the plane with the forklift and lift the
plane, but a safety officer had him restrained.
5) Airbags were used to lift the plane, taking
approximately 10-12 minutes. The safety officer
said it was more important to save the plane than
to save the man.
6) After the plane was lifted, he broke away, helped
free Holland, and brought him to someone who
gave Holland a shot to revive him. Holland died
the next day at the hospital.
The Petitioner wrote that he believed Holland
would have lived had his efforts not been thwarted.
He had been suffering from nightmares, had problems
dealing with stress and authority figures. The claim
was denied for lack of a diagnosis.
11
On October 24, 1997, the Petitioner provided the
VA with a copy of Holland’s death certificate, and a
PTSD diagnosis. The VA obtained evidence
corroborating the Petitioner’s story, including evidence
that Holland had been crushed in an airplane accident
on February 4, 1969, that it took 10-12 minutes to free
him, and that he died the next day.
The Petitioner was awarded PTSD compensation
on May 19, 1998, with an effective date of August,
1993. The effective date was later modified to July,
1992.
A VA psychologist Dr. Michael Marcy, had
evaluated the Petitioner.
Marcy testified that the Petitioner told him that
the death of a friend during his Navy service resulted
in a distrust of authority. He told Marcy that Navy
leaders did not adequately respond to the accident,
that he was impeded from helping, and that the
investigation was poor. He told Marcy that he thinks
about these things at least three to four times per
week, and has nightmares. Marcy concluded that
because of the death of Holland the Petitioner had
become emotionally and socially isolated, suffered from
intrusive recollections, drank alcohol to forget,
distrusted authority, had problems concentrating and
had suicidal ideations.
Marcy determined that the Petitioner’s ability to
work had been greatly diminished. His concentration
was affected by PTSD. His reliability and productivity
were diminished, and the PTSD caused depression and
anger control difficulties. Marcy’s diagnosis was
12
PTSD. Marcy testified that being a bystander when
Holland was crushed would be a PTSD stressor.
In December 2003, the Petitioner contacted Ray
Vasil, Special Agent with the VA Inspector General in
Chicago. He told Vasil that VA employees in
Milwaukee, Wisconsin, were tampering with his
records.
Vasil met with Mr. Jon Baker, the director at
Milwaukee. Vasil then began to investigate the
Petitioner for fraud. Mr. Vasil obtained the 1969 Navy
report. He traveled to Florida to interview Mr. Fuchs.
He met twice with the Petitioner. Mr. Vasil was the
only witness before the Grand Jury.
The Inspector General concluded that the
Petitioner was not present during Holland’s accident.
(The record confirms that Holland and the Petitioner
attended Navy courses in Tennessee and New Jersey,
then went to Naples. They lived in the enlisted
barracks across the hall from each other. They worked
in the same building for several months prior to the
death of Holland, and they both took the E-4
promotion test on the morning of the 4th.) At trial a
VA representative, Barbara Nehls, testified that the
Petitioner received $262,944.12 more than he should
have, based upon the determination that he was not
entitled to VA disability compensation benefits for
PTSD.
Portions of the Petitioner’s statement of facts
provided to the VA were supported by the testimony at
trial and Vasil’s report. Testimony established that
the Petitioner was stationed at the base at the time of
Holland’s accident. Testimony confirmed that an
13
alarm was sounded, and that Holland was crushed by
the airplane.
Richard McFadden testified that he suggested
using a forklift to lift the plane, and the idea was
rejected. Jack Tankersley operated the forklift, and
was going to puncture the radome to lift the plane, but
was stopped. People were placed in the rear of the
airplane.
Others testified that it took 10-12 minutes to raise
the airplane and that Holland was administered a shot
before being transported to the hospital. Others
testified that they did not remember seeing anyone
from the line shack leading the rescue operation. They
also said that such personnel would not normally be
responsible for rescue operations, which is untrue.
Others stated that the airplane was lifted with a
forklift fitted with slings, and that the airbag-method
was considered, but rejected.
Some testified that the airplane was lifted quickly,
but confirmed that there was talk around the base that
the airplane should have been raised sooner.
A comparison of the reports of Fuchs and Vasil
confirms that everyone who took part in the rescue
was not interviewed. In 1969 the interviewees were
not asked if the Petitioner was present. No list of
witnesses was compiled.
The following facts asserted by the Petitioner were
corroborated by Vasil’s report: (1) Holland’s name; (2)
the make of the airplane; (3) how Holland died; (4) the
14
time of day the accident occurred; and (5) that a shot
was administered to Holland.
Dr. Donald Derozier testified that he evaluated the
Petitioner on March 26, 2003 and diagnosed the
Petitioner as having PTSD. Derozier had considered
whether the Petitioner was lying regarding his
involvement in the incident, in order to obtain VA
benefits, but determined that he was not lying.
On October 15, 2004, the American Legion wrote to
the VA and requested the 38 C.F.R. part 42 procedures
and the Vasil report (App. 142a-149a).
The VA severed the disability benefits of the
Petitioner for fraud on November 10, 2004. (App. 115a-
123a).
On November 22, 2004, the petitioner wrote to the
Secretary of Veterans Affairs, complaining that his
rights under the Fifth Amendment to the U.S.
Constitution had been violated. (App. 150a-159a).
The Petitioner appealed the VA decision. On April
26, 2005, a Grand Jury issued a six count indictment
of Petitioner for mail fraud under Title 18 U.S.C.
§ 1341 based upon six letters that he wrote to the VA
seeking an earlier date for his benefits.
In June of 2005 petitioner required leave of the
District Court to attend a hearing at the Board of
Veterans Appeals in Washington, D.C.. The Board
would not permit the Petitioner to review the Vasil
report. The Board issued a decision on August 26,
2005. (App. 54a-114a).
15
On August 26, 2005, the Petitioner filed a Notice of
Appeal with the U.S. Court of Appeals for Veterans
Claims, (CAVC) docket number 05-2425. Oral
argument was held on October 23, 2008. No decision
has been issued. The Petitioner was convicted in
November of 2006 and sentenced on March 2, 2007.
(App. 264a-266a).
REASONS FOR GRANTING THE WRIT
Under Supreme Court Rule 10, the Court will
review a United States Court of Appeals decision for
compelling reasons. A compelling reason exists when
(a) a United States court of appeals has entered
a decision in conflict with the decision of
another United States court of appeals on
the same important matter; has decided an
important federal question in a way that
conflicts with a decision by a state court of
last resort; or has so far departed from the
accepted and usual course of judicial
proceedings, or sanctioned such a departure
by a lower court, as to call for an exercise of
this Court’s supervisory power;
***
(c) . . . a United States court of appeals has
decided an important question of federal law
that has not been, but should be, settled by
this Court, or has decided an important
federal question in a way that conflicts with
relevant decisions of this Court.
16
S.Ct.R. 10(a). These compelling reasons exist in this
case. The Court of Appeals determined that it was
proper for a criminal prosecution to go forth when such
action was based on allegations of the same
misconduct which served as the basis for the denial of
veterans’ benefits, while the appeal of the decision of
the VA was pending before the U.S. Court of Appeals
for Veterans Claims. This specific question is a matter
of first impression and should be addressed by this
Court. The decision of the Seventh Circuit, in deciding
this issue, conflicts with decisions of this Court on
related matters. The Court of Appeals decision reflects
a departure from the accepted and usual course of
judicial proceedings, thereby calling for the exercise of
this Court’s supervisory power.
A. The Seventh Circuit Court of Appeals
Erred in Failing to Find that it is a Denial
of a Veteran’s Due Process Rights to
Require Him to Answer a Criminal
Indictment Alleging the Same Misconduct
Giving Rise to the Denial of Veterans’
Benefits, Where the Appeal of the Decision
of the Department of Veterans Affairs is
Still Pending Before the United States
Court of Appeals for Veterans Claims.
In evaluating due process claims, an inquiry must
be made as to whether the practice “offends some
principle of justice so rooted in the traditions and
conscience of our people as to be ranked as
fundamental.” Snyder v. Massachusetts, 291 U.S. 97,
105, 54 S.Ct. 330, 332, 78 L.Ed. 674 (1934). As stated
by Justice Frankfurter, due process:
17
embodies a system of rights based on moral
principles so deeply imbedded in the traditions
and feelings of our people as to be deemed
fundamental to a civilized society as conceived
by our whole history. Due process is that which
comports with the deepest notions of what is
fair and right and just.
Solesbee v. Balkcom, 339 U.S. 9, 16, 70 S. Ct. 457, 461,
94 L. Ed. 604 (1950).
The Petitioner asserts that his due process rights
were violated when he was prosecuted on the basis of
a determination of issues which were already pending
determination by the U.S. Department of Veterans
Affairs at the Board of Veterans’ Appeals, (BVA), and
later at the United States Court of Appeals for
Veterans Claims (CAVC). The Petitioner was indicted
on April 26, 2005. A hearing before the BVA in the
benefits appeal was held in Washington, D.C. in June
of 2005. The decision of the BVA affirming the
reduction of his disability benefits is dated August 26,
2005. (App. 54a-114a). An appeal was filed with the
CAVC on August 26, 2005, docket number 05-2425.
(App. 52a-53a). Following briefing (App. 160a-207a)
and supplemental briefing (App. 208a-238a; 239a-
263a) to that court, oral argument was held on October
23, 2008, pursuant to an order dated August 12, 2008.
(App. 39a-40a). The issue at bar in that case is the
Petitioner’s entitlement to the restoration of disability
benefits payments from the VA. No decision has
issued.
The CAVC has exclusive jurisdiction to to conduct
the initial judicial review of decisions regarding VA
benefit claims. Scarborough v. Principi, 541 U.S. 401,
18
413, n.3 (2004); See also Brown v. Gardner, 513 U.S.
114 (1995). In this case a criminal prosecution was
commenced and concluded during the pendency of the
VA appeal process. The Petitioner is incarcerated,
having been convicted of five counts of wire fraud,
(App. 26a-34a), while the CAVC may soon determine
that he was legally entitled to these payments. This
premature prosecution deprived the Petitioner of his
due process rights. It trampled the jurisdiction of the
CAVC, the Court empowered by Congress to review
VA benefits appeals.
Should the Petitioner not prevail at the CAVC, he
still has his appeal of right to the U.S. Court of
Appeals for the Federal Circuit. The Secretary of
Veterans Affairs and the Department of Justice have
circumvented the exclusive jurisdiction of the CAVC.
The matter was not ripe for criminal prosecution.
In Winslow v. Walters, 815 F.2d 1114, 1117 (7th Cir.
1987), the appellate court stated that 38 U.S.C. § 211
deprived federal courts “of the power to alter
determinations made by the VA regarding disability
ratings and entitlements to benefits.” Since that case
was decided, § 211 has been repealed. In its place, 38
U.S.C. § 511 states that “the Secretary shall decide all
questions of law and fact necessary to a decision by the
Secretary under a law that affects the provision of
benefits by the Secretary to veterans . . .” 38 U.S.C.
§ 511(a). The statute further provides that “the
decision of the Secretary as to any such question shall
be final and conclusive and may not be reviewed by
any other official or by any court . . .” Id. The
exceptions to this rule are limited to issues of notice
regarding rulemaking, under § 502, matters related to
insurance under §§ 1975 and 1984, matters arising
19
under § 3701, et seq., regarding housing and small
business loans, and matters covered by 38 U.S.C.
§ 7251, et seq., which involves the jurisdiction,
organization, and procedure for the CAVC. 38 U.S.C.
§ 511(b). Any question of law or fact utilized in the
determination of the Petitioner’s right to VA benefits
was not reviewable by any court other than the CAVC.
1. The Court of Appeals Erred by Failing
to Address the Issue at Bar
The Court of Appeals agreed that both the criminal
case and the benefits appeal “involve the question of
whether Mr. Roberts made false statements in his
veterans’ benefits claims . . .” United States v. Roberts,
534 F.3d 560, 568 (7th Cir. 2008); (App. 13a-14a).
However, the Court of Appeals erred in concluding
that “the district court did not ‘review’ the decision of
the Board of Veterans’ Appeals regarding [the
Petitioner’s] disability rating or entitlement to benefits
. . .” Id. This of course is not the issue which the
Petitioner has presented. The issue is not whether the
district court reviewed the decision of the Board of
Veterans’ Appeals, but rather, that the district court
improperly adopted a non final determination as the
underpinning of the criminal prosecution.
The Petitioner was originally awarded benefits
based on the VA’s reliance on the government
documents which he provided, along with a diagnosis
of PTSD. The Petitioner’s benefits were reduced,
based on, inter alia, a determination by the VA that
his statements regarding in service stress were not
true. (App. 129a-141a). The VA reduced the
Petitioner’s benefits based on the determination that
he had made false statements, when his statements
20
cannot form the basis of an award of PTSD under
controlling VA regulations and law. The criminal case
also involved the question of whether the same
statements were false. The CAVC was reviewing the
issue of whether the VA complied with the relevant
laws and precedents of that Court in determining that
the Petitioner was not entitled to disability benefits
and payments. The Petitioner was simultaneously
facing criminal charges in the district court on the
exact same review, the same historical event, and the
same factual dispute – even though the CAVC had
exclusive jurisdiction to review the VA’s decision.
The Court of Appeals erred in failing to even
address the true issue presented by the Petitioner:
that the criminal prosecution of the Petitioner
constituted an improper review of the VA’s factual
determinations, when the CAVC had the sole
jurisdiction to conduct such review.
2. The Court of Appeals Erred by Relying
on 38 C.F.R. §§ 1.200-05 to conclude that
the district court properly denied the
Petitioner’s motion to dismiss for lack
of jurisdiction.
The Court of Appeals erred in adopting the
erroneous argument presented by the government, and
relying on 38 C.F.R. §§ 1.200-1.205 to conclude that
the criminal prosecution in the instant case did not
violate the Petitioner’s rights, since 38 C.F.R. §§ 1.200-
1.205 requires VA employees to report information
concerning criminal violations to law enforcement
authorities for criminal investigation. Roberts, 534
F.3d at 568; (App. 14a).
21
38 C.F.R. §§ 1.200-1.205 outline the duties of VA
employees to include reporting 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, there are specific
regulations for instances where fraud is alleged.
These regulations, established under 31 U.S.C.
§§ 3801-3812 and 38 C.F.R. §§ 42.1-42.47, afford
certain due process protections, which were not
provided to the Petitioner. If a determination of fraud
is made under that procedure then the criminal
penalty called for under 38 U.S.C. § 6102 ( b ) applies
(fine and imprisonment of not more than one year).
The calculation of any benefits overpayment requiring
restitution must be determined by the Secretary of
Veterans Affairs. The government pursued a
premature criminal prosecution and wrongfully
deprived the Petitioner of his due process rights and
his liberty.
The Petitioner’s benefits were reduced
administratively, based upon a determination that his
statement of facts forming the basis of his claim was
not true. (App. 129a-141a). The VA had not completed
the mandatory internal Agency review required in
benefits cases. See 38 C.F.R. § 14.561:
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
22
1 The Court of Appeals inexplicably refused to consider any
citation to 38 C.F.R. § 14.561. The Petitioner cited to same in
response to the government’s argument regarding the
applicability of 38 C.F.R. §§ 1.200-1.205. The Court of Appeals
stated that “arguments raised for the first time in a reply brief are
waived.” Roberts, 534 F.3d at 568, n. 5; (App. 14a). Of course, the
Petitioner had not presented any such new argument. Rather, the
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.
The Petitioner pursued an appeal before the CAVC,
his only avenue of review of the VA determination
under the laws of the United States. The government
has deprived him of both his liberty and the potential
benefit of that appeal by pursuing a premature
prosecution in the U.S. District Court. The Petitioner
concedes that VA officials are sometimes required to
submit cases to the U.S. Attorney’s office prior to the
exhaustion of such appellate procedures. Such is
provided for in 38 C.F.R. § 14.561, “. . . in urgent
cases such as breaches of the peace, disorderly
conduct, trespass, robbery, or where the evidence may
be lost . . .” (Emphasis added). This provision was not
applicable here. There was no exigency. The VA
benefits in question had already been stopped, and
there was therefore no risk of further harm or loss to
the government during the time necessary to complete
the appropriate administrative procedures.1
23
Petitioner’s argument remained that the CAVC had exclusive
jurisdiction, and by bringing the criminal prosecution, the
government deprived him of the benefit of an appeal to that court.
It was only after the government erroneously argued for the
application of 38 C.F.R. §§ 1.200-1.205, that any citation to
§ 14.561 was necessary.
3. The Court of Appeals Erred in Failing
to find Additional Due Process
Violations.
The Petitioner was denied the due process
protections afforded him by the administrative
procedures in place, which must be followed where
fraud is alleged. These protections are established in
38 U.S.C. § 6103, and 38 C.F.R. §§ 42.1-42.47. The ad
hoc manner used by the VA to investigate and initiate
criminal proceedings against the Petitioner for wire
fraud resulted in a total disregard for his right to due
process. The Petitioner was never furnished a target
letter. He was not permitted to review the Vasil report
at any time until after his indictment. It was not
made available to him during the BVA hearing. The
American Legion wrote to both the Inspector General
and the Director, Compensation and Pension Service,
of the U.S. Department of Veterans Affairs. (App.
142a-149a). He requested a copy of the investigative
report and the notice and opportunity to have a
hearing on the record before an Administrative Law
Judge as provided under 38 C.F.R. §§ 42.1-42.47.
Veterans Law Judges at the Board of Veterans’
Appeals are employees of the agency, and their have
been long standing complaints as to bias and lack of
objectivity in the decisions promulgated by the Board.
The Petitioner was never informed of his rights as a
suspect until he was arraigned in U.S. District Court
24
contrary to Miranda v. Arizona, 384 U.S. 436 (1966).
He was interviewed twice after he was the focus of the
VA fraud investigation. The VA did not inform him of
his rights as the subject of investigation for criminal
activity. Instead of adhering to such administrative
requirements, the government pursued a premature
criminal prosecution. The Petitioner was ordered to
report for a psychiatric examination and was
interviewed twice by the VA investigators after he was
under investigation for fraud without notice of his
rights. He was called in for yet another VA psychiatric
examination after his benefits had been terminated.
He testified under oath at his BVA hearing after his
indictment. He was not notified of his right to counsel,
to adjourn the proceedings, or of any consequences his
testimony might have in his criminal case.
VA benefits proceedings are intended to be exparte
and claimant friendly. See Hodge v. West, 155 F.3d
1356 (Fed. Cir. 1998). They are similar to disability
benefits claims adjudications conducted by the
Commissioner of Social Security. See Sims v. Apfel,
530 U.S. 103 (2000).
Although the VA Inspector General has broad
authority, he still must follow the administrative
procedures in place for individuals such as the
Petitioner. In this case, the Inspector General chose to
ignore those procedures. The actions in pursuing the
criminal prosecution of the Petitioner was certainly
ultra vires. Not only was there never a probable cause
determination made by the VA General Counsel, the
basis for the investigation of the Petitioner by the VA
Inspector General was that “certain inconsistencies”
were found in his VA administrative file. That file was
over 2,500 pages in length at the time the
25
2 This testimony improperly indicates that VA procedures for a
PTSD benefits determination rely upon the factual assertions of
the claimant. Under 38 CFR 3.304(f), medical evidence
diagnosing the condition is required and, unless the claimant was
engaged in combat or was a prisoner of war, the stressor must be
proven by more than uncorroborated assertions by the claimant.
See Pentecost v. Principi, 16 Vet. App. 124, 126-129 (CAVC 2002),
Cohen v. Brown, 10 Vet. App. 128, 138 (CAVC 1987); Suozzi v.
Brown, 10 Vet. App. 307, 309 (CAVC 1997).
investigation was initiated. Had the Petitioner been
afforded the notice, discovery and hearing called for in
38 C.F.R. §§ 42.1-42.47 he is confident that he would
not have been indicted. The government’s intentional
circumvention of the relevant administrative processes
is in direct violation of the principles established by
this Court, which has long recognized that
administrative regulations are to be followed. Service
v. Dulles, 354 U.S. 363, 372 (1957); Accardi v.
Shaugnessy, 347 U.S. 260, 267 (1954).
4. Conclusion
In the instant case, the Petitioner’s compensation
benefits were revoked because the Inspector General’s
report improperly concluded that the Petitioner
misrepresented facts in his claim for PTSD benefits
and that such misrepresentations were relevant to an
award of compensation for service related PTSD. That
is not true. Benefits for non-combat PTSD require
independent corroboration. In reducing the benefits,
the witnesses for the government claimed that the VA
determined that the statement of facts offered by the
Petitioner was not true.2 The veracity of the
Petitioner’s statements are not relevant to the VA
26
PTSD benefits award, they cannot form the basis of
such a determination.
It is probable that the CAVC will reverse the VA’s
decision and restore the Petitioner’s benefits.
The Secretary has informed the CAVC of the
conviction of the Petitioner and now argues that he is
prevented from pursuing his appeal at the CAVC due
to estoppel. Should the CAVC order his benefits
restored, he cannot receive them as he is a convicted
and incarcerated felon.
The U.S. District Court and the U.S. Court of
Appeals for the Seventh Circuit have invaded the
jurisdictional domain of the CAVC in direct
contravention of the express intent of Congress. The
determination by the court below that the criminal
prosecution was within their jurisdiction is contrary to
law. Until a final determination is made by the CAVC
regarding the underlying entitlement to benefits the
matter is not ripe for criminal prosecution.
By circumventing the statutory remedies in place
for mentally ill veterans such as the Petitioner, the
Department of Justice and the trial court have
usurped the jurisdiction of the CAVC and have
deprived the Petitioner of his right to due process and
to a claimant friendly, ex parte adjudication of his
benefits claims. This case presents an unprecedented
situation in which the Petitioner was forced to defend
himself in two entirely separate forums
simultaneously after his financial resources have been
eliminated. The criminal Court’s decision in this
matter is one which will have a far-reaching impact for
the thousands of veterans who are now returning from
27
combat service. The unprecedented number of
criminal prosecutions being initiated by the Secretary
of Veterans Affairs is not in keeping with past
practices or the internal regulations and statutes
which govern that agency. The Petitioner respectfully
requests that this Court grant his petition for a writ of
certiorari so that this matter may be fully briefed and
thus provide future guidance for all those concerned.
B. The Court of Appeals erred in concluding
that the evidence presented at trial was
sufficient to sustain a conviction for wire
fraud, when the government had failed to
establish, beyond a reasonable doubt, the
necessary elements for such a charge.
Federal constitutional law requires that a verdict
be supported by legally sufficient evidence for each
element of crimes alleged. In re Winship, 397 U.S.
358, 90 S.Ct. 1068 (1970). Since the founding of this
country the idea that one cannot be convicted upon
evidence that does not rise to a level beyond a
reasonable doubt has become enmeshed in our
jurisprudence.
Due process rights, such as the need to prove
elements of a crime beyond a reasonable doubt, protect
against errors in fact finding. In Cage v. Louisiana,
498 U.S. 39, 40 (1990), the Supreme Court stated that
the “reasonable doubt standard ‘plays a vital role in
the American scheme of criminal procedure. Among
other things, it is a prime instrument for reducing the
risk of convictions resting on factual error.’”
Furthermore, as noted in Winship, 397 U.S. at 364
(1970), “a society that values the good name and
28
freedom of every individual should not condemn a man
for commission of a crime when there is reasonable
doubt about his guilt.” Winship itself makes clear that
the requirement of proof beyond a reasonable doubt is
grounded upon accuracy concerns:
The requirement of proof beyond a reasonable
doubt has this vital role in our criminal
procedure for cogent reasons. The accused
during a criminal prosecution has at stake
interest of immense importance, both because of
the possibility that he may lose his liberty upon
conviction and because of the certainty that he
would be stigmatized by the conviction.
Id. at 364.
The ‘demand for a higher degree of persuasion
in criminal cases was recurrently expressed
from ancient times, [though] its crystallization
into the formula “beyond a reasonable doubt”
seems to have occurred as late as 1798. It is
now accepted. . . as the measure of persuasion
by which the prosecution must convince the
trier of all the essential elements of guilt.
Id. at 361 (quoting C. McCormick, Evidence § 321, pp.
681-82 (1954)).
To find the Petitioner guilty, the jury was required
to find that the Petitioner “knowingly devised or
participated in a scheme to defraud . . .”, “that the
scheme involved the misrepresentation of a material
matter,” that the Petitioner made such a material
misrepresentation with the intent to defraud, and
that, for the purpose of carrying out the scheme, the
29
Petitioner caused interstate wire communications to
occur.
1. The Court of Appeals erred in failing to
find that the evidence did not
establish, beyond a reasonable doubt,
that more than a minor portion of the
Petitioner’s account of the incident was
misrepresented.
The Court of Appeals stated that the Petitioner
argued “that the Government failed to prove beyond a
reasonable doubt that his statements to the VA
regarding Airman Holland’s death were false”
(Roberts, 534 F.3d at 569) ( App. 15a). The Petitioner
actually argued, and continues to argue, that the
evidence offered at trial did not establish, beyond a
reasonable doubt, that more than a minor portion of
the Petitioner’s account of the incident to the VA was
incorrect.
Much of the Petitioner’s statement of facts to the
VA were corroborated by the government’s witnesses.
The Petitioner claimed that Holland should not have
died, had the accident been remedied properly.
Although the Court of Appeals concluded that
witnesses “testified that the rescue mission had been
orderly and well managed . . .” (Roberts, 534 F.3d at
570); (App. 17a), there was further testimony that
there had been talk around the base that the airplane
should have been raised more quickly.
At best, the testimony at trial left the following
statements unconfirmed: (1) that airbags were used to
lift the plane; and (2) that the Petitioner first
suggested running the forks of the forklift through the
30
radome in order to lift the plane. The Court of Appeals
suggested there was sufficient evidence of other
misrepresentations – such as whether the Petitioner
was present at the scene, and whether the Petitioner
was friends with Holland. Roberts, 534 F.3d at 570;
(App. 17a). However, there certainly was not sufficient
evidence to support these findings. Some witnesses
did testify they did not remember seeing the Petitioner
at the scene and that they did not know the Petitioner
to have been friends with Holland. These witnesses
admitted that they did not know the Petitioner. It is
undisputed that the Petitioner was stationed at the
base at the time in question and worked in the hangar.
It would have been impossible for them to remember
whether the Petitioner was present if they did not
know him. Only Holland could have confirmed his
relationship with the Petitioner.
On the other hand, the trial testimony corroborated
the Petitioner’s claims that
(1) he was stationed at the base;
(2) that Holland was crushed by a plane as a result
of a pin releasing;
(3) that the accident occurred while the Petitioner
was stationed in Naples;
(4) that an alarm was sounded;
(5) that men were placed in the rear of the plane;
(6) that the idea of puncturing the radome was
initially rejected;
31
(7) that it took between 10 and 12 minutes to lift
the plane; and
(8) that Holland was given a shot before being
taken to the hospital where he died the next
day.
Critical portions of the Petitioner’s statement of
facts were neither corroborated nor refuted by those
who testified at trial, including the following
assertions:
(1) that the Petitioner believed Holland would have
lived had his attempts not been thwarted;
(2) that the Petitioner suffered nightmares and had
problems dealing with stress and authority
figures; and
(3) that the Petitioner felt the investigation into the
accident was faulty.
There existed some differences between the
statement of facts provided by the Petitioner and the
trial testimony. That testimony included assertions
that witnesses did not remember an airman giving
orders, that they did not hear anyone say it was more
important to save the plane than to save Holland.
Essentially, some portions of the Petitioner’s
statement of facts was entirely consistent with, and
even corroborated by, testimony offered at trial, while
other portions were inconsistent. This should not be
surprising. The government’s witnesses were
testifying to something which had occurred
approximately 13 years before the Petitioner provided
his statement of facts. The government relied upon
32
the investigative report which was prepared soon after
the incident. The Petitioner was not interviewed for
the investigation. It did not describe the rescue
attempt in great detail. There is no list of
participants.
After over thirty years, it should not be surprising
that the witnesses at trial could not recall the presence
of someone at the incident they never knew.
The Petitioner’s statement of facts contains only a
few inconsistencies. Therefore, to convict the
Petitioner, the jury had to conclude that this minor
portion of that statement of facts constituted a
material misrepresentation, was intentionally
misrepresented, and was made for the purpose of
defrauding the VA.
2. The evidence did not establish, beyond
a reasonable doubt, that the Petitioner
intentionally misrepresented facts to
the VA.
The Court of Appeals failed to make any findings
relative to whether any alleged misrepresentations by
Gordon Duff posted articles on VT from 2008 to 2022. He is a Marine combat veteran of the Vietnam War. A disabled veteran, he worked on veterans and POW issues for decades.
Gordon is an accredited diplomat and is generally accepted as one of the top global intelligence specialists. He manages the world’s largest private intelligence organization and regularly consults with governments challenged by security issues.
Duff has traveled extensively, is published around the world, and is a regular guest on TV and radio in more than “several” countries. He is also a trained chef, wine enthusiast, avid motorcyclist, and gunsmith specializing in historical weapons and restoration. Business experience and interests are in energy and defense technology.
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