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United States v. Roberts

July 7, 2008


Appeal from the United States District Court for the Eastern District of Wisconsin. No. 05 CR 118-William C. Griesbach, Judge.

The opinion of the court was delivered by: Ripple, Circuit Judge.


Before EASTERBROOK, Chief Judge, and RIPPLE and KANNE, Circuit Judges.

On September 13, 2005, Keith Roberts was charged with five counts of wire fraud in violation of 18 U.S.C. § 1343. The indictment alleged that Mr. Roberts had devised and participated in a scheme to defraud the Government by making false statements in an effort to obtain more than $320,000 in veterans' benefits. A jury trial was held, and Mr. Roberts was convicted of all five counts. The district court sentenced Mr. Roberts to 48 months' imprisonment and ordered restitution in the amount of $262,943.52. For the reasons set forth in this opinion, we affirm the judgment of the district court.



Mr. Roberts served on active duty in the United States Navy from March 22, 1968 until December 23, 1971, when he received an honorable discharge. During the majority of his time in the service, he was stationed at the Naval Air Facility in Naples, Italy, a non-combat support facility for naval operations in the Mediterranean. As an enlisted airman, Mr. Roberts was one of the lowest-ranked men at the base. Approximately 350 military personnel were assigned to the Naples facility. Like all military facilities, it operated at all times under a chain of command.

While Mr. Roberts was stationed in Naples, a traumatic event occurred on the base. On February 4, 1969, Airman Gary Holland was performing maintenance on a C54 aircraft when the plane's front landing gear collapsed. As a result of the collapse, Airman Holland was pinned inside the nose wheel well. He was trapped for approximately twelve to fifteen minutes before his shipmates were able to raise the plane's nose and extricate him. Airman Holland was non-responsive at all times while he was trapped in the wheel well, and he never regained consciousness. He died the next day due to the injuries he had sustained in the accident.

The aviation safety officer on the base, Lieutenant Commander Jerry Lee Fuchs, conducted an official investigation of the incident. His investigation concluded that the accident had been caused by the use of a non-regulation ground lock safety pin in the plane's front landing gear. Airman Holland accidentally had dislodged the pin during maintenance. Lieutenant Commander Fuchs prepared a detailed report of his findings (the "accident report"). The accident report included his own eyewitness account, approximately 20 witness statements, photographs of the scene, photographs and data from a re-enactment, and Airman Holland's death certificate and death report form. Mr. Roberts was not mentioned in the accident report.


The United States Department of Veterans Affairs ("VA") pays veterans two types of disability benefits: pension benefits and compensation benefits. Pension benefits are need-based benefits paid to low income combat-era veterans*fn1 who reach the age of 65 or become substantially disabled due to non-service-connected conditions. These payments supplement the veteran's income, including other retirement or Social Security income, in order to bring his total income up to a minimum level set by Congress. Compensation benefits, by contrast, are paid, regardless of need, to veterans who suffer from service-related disabilities. Compensation benefits have a higher ceiling than pension benefits; however, the amount varies according to the severity of the veteran's disability. A veteran cannot receive simultaneously both a disability pension and disability compensation benefits.

Mr. Roberts received an honorable discharge in December 1971. Sixteen years later, in February 1987, he filed his first of many claims for benefits with the VA. Mr. Roberts' initial claim was for non-service-connected pension benefits. He alleged that a recent heart attack had rendered him 100 percent disabled and that his income was below the minimum level set by Congress. The VA concluded that Mr. Roberts' alleged disabilities were not sufficiently severe to prevent his gainful employment, and it therefore denied his claim.

In November 1990, Mr. Roberts renewed his claim for pension benefits. Along with his previous allegations of heart disease, he alleged that he suffered from non-service-connected depression, high blood pressure, angina, a pulmonary blood clot, elbow bursitis and back pain. He also stated that he had been under psychiatric treatment for manic depression since his 1987 heart attack. In addition to his claim for pension benefits, Mr. Roberts also filed a claim for service-connected compensation benefits. He alleged that he suffered from a knee condition and hearing loss that had been sustained during active duty. Concluding that Mr. Roberts had failed to show sufficient disability, however, the VA denied both of these claims.

Mr. Roberts appealed this finding. In March 1993, the VA reexamined his claim and determined that he had a combined non-service-connected disability rating of 80 percent. Accordingly, it granted him a pension benefit, retroactive to November 14, 1990. This pension benefit was based on his alleged depression and personality disorders, heart disease and other non-service-related ailments; it was not based on any service-connected disabilities.

In August 1993, Mr. Roberts filed a claim for compensation benefits. He claimed that he suffered from a service-connected personality disorder. His application read "13 Dec 1969 - Acute Personality Disorder,"*fn2 but it contained no supporting facts regarding his condition or its allegedly service-related cause. The VA denied his claim.

In February 1994, Mr. Roberts filed a request for compensation benefits. This claim was based on allegations that he suffered from post-traumatic stress disorder ("PTSD") stemming from an incident that occurred during the time he was on active duty. The VA provides compensation benefits for veterans disabled by PTSD if they can show (1) an official diagnosis of PTSD, (2) credible evidence that a sufficiently traumatic event occurred during active military service (an "in-service stressor") and (3) evidence that the in-service stressor is causally related to the PTSD. See 38 C.F.R. § 3.304(f). The claim submitted by Mr. Roberts, however, did not identify his in-service stressor, and it offered no evidence that he had been diagnosed with PTSD based on a psychological or psychiatric examination. The VA therefore sent a letter to Mr. Roberts informing him that he must provide both a detailed account of his in-service stressor and evidence of an official PTSD diagnosis before it could award him benefits. Mr. Roberts did not respond in a timely fashion; the VA therefore denied his claim.

In December 1994, Mr. Roberts renewed his claim for compensation benefits based on PTSD. This time, he submitted a handwritten statement in which he identified as his in-service stressor the incident involving Airman Holland's death. This statement described his allegedly close relationship with Airman Holland, who he claimed had been his "very good friend." R.58 at 27. He also asserted that he had been substantially involved in Airman Holland's rescue.

Specifically, Mr. Roberts recounted that he had been "left in charge of the line shack" on the day of the incident, and therefore he had authority to run any rescue operations on the base. Id. He stated that, immediately after the plane's nose wheel collapsed, he had "proceeded to sound the alarm" and "run over to the plane to assess the situation." Id. He alleged that he had found Airman Holland "still conscious and coherent" under the plane and "informed him that [he] would get him out." Id. Mr. Roberts stated that he then went next door, informed the Chief Petty Officer ("CPO") of the situation and then "ordered him to bring a Cherry Picker into the front of the hangar to lift the plane." Id. According to Mr. Roberts, he then ordered another superior to load men inside the rear of the plane in an effort to take weight off the front wheels, and he ordered the CPO to "puncture the radome of the plane to lift it up." Id. At this point, a lieutenant commander allegedly "ordered [him] to stop" giving orders and, when he refused, ordered a Marine to place him under arrest. Id.

Mr. Roberts explained that the lieutenant commander "then proceeded to have air bags placed under the plane to lift it," a method that "took approximately 10-12 min." Id. He asserted that his proposed method of lifting the plane by puncturing its nose with the forklift would have taken "only a few minutes," but that the lieutenant commander had said that "it was more important to save the plane than it was to save the man." Id. at 27-28.

Mr. Roberts further averred that, when the plane rose enough for Airman Holland's arm to fall free, he "broke away from the Guard" and, with the help of another shipmate, extracted Airman Holland and took him to receive medical attention. Id. at 28. He stated that an awaiting corpsman revived Airman Holland by administering a shot of adrenaline in the heart. Nevertheless, Airman Holland died the next day due to injuries sustained in the accident. Mr. Roberts concluded his statement by asserting his firm belief that Airman Holland "would have lived if [Mr. Roberts] had not been thwarted in [his] rescue attempts" by Navy leadership. Id.

Despite this detailed description of his in-service stressor, in January 1995, the VA again denied Mr. Roberts' claim for PTSD benefits. It explained that he lacked any confirmation, other than his own report, of the fact that the alleged in-service stressor had occurred; it also noted that he had failed to include any record of an official PTSD diagnosis.

Through some effort, Mr. Roberts was able to obtain a copy of the accident report from the Navy in 1997. He subsequently submitted three pages from the report, including Airman Holland's death certificate and death report, to supplement his previous PTSD claim. These documents served as the necessary confirmation of his alleged ...

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