United States v. Roberts, Keith A.

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 07-1546
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
KEITH A. ROBERTS,
Defendant-Appellant.
____________
Appeal from the United States District Court
for the Eastern District of Wisconsin.
No. 05 CR 118—William C. Griesbach, Judge.
____________
ARGUED OCTOBER 25, 2007—DECIDED JULY 7, 2008
____________
Before EASTERBROOK, Chief Judge, and RIPPLE and KANNE,
Circuit Judges.
RIPPLE, Circuit Judge. 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
2 No. 07-1546
set forth in this opinion, we affirm the judgment of the
district court.
I
BACKGROUND
A.
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 approxi-
mately 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 investi-
No. 07-1546 3
gation 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.
B.
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
veterans1 who reach the age of 65 or become substan-
tially disabled due to non-service-connected conditions.
These payments supplement the veteran’s income, in-
cluding 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 disabil-
ity pension and disability compensation benefits.
1
Mr. Roberts qualified as a combat-era veteran because he
had served during the Vietnam War.
4 No. 07-1546
Mr. Roberts received an honorable discharge in Decem-
ber 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 ren-
dered him 100 percent disabled and that his income was
below the minimum level set by Congress. The VA con-
cluded 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 addi-
tion 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 suf-
ficient 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.
No. 07-1546 5
In August 1993, Mr. Roberts filed a claim for compen-
sation benefits. He claimed that he suffered from a service-
connected personality disorder. His application read
“13 Dec 1969 - Acute Personality Disorder,”2 but it con-
tained 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 com-
pensation 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 compen-
sation 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 psychiat-
ric 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 identi-
fied as his in-service stressor the incident involving
2
This date was nearly a year after Airman Holland’s death.
6 No. 07-1546
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 opera-
tions 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 com-
mander had said that “it was more important to save
the plane than it was to save the man.” Id. at 27-28.
No. 07-1546 7
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 adminis-
tering 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 confirma-
tion, 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 in-service stressor. A VA psychologist then exam-
ined Mr. Roberts and diagnosed him with PTSD.
The VA rated the extent of Mr. Roberts’ disability at
50 percent. Because the 50-percent compensation pay-
ments would have been lower than the pension benefits
that Mr. Roberts already was receiving, however, Mr.
Roberts elected to continue receiving his pension payments
rather than compensation benefits.
8 No. 07-1546
In December 1998, expressing disagreement with the
VA’s original 50-percent disability rating, Mr. Roberts
renewed his claim for compensation benefits based on
PTSD. Another VA psychologist, Dr. Michael Marcy,
examined Mr. Roberts. During his examination, Mr.
Roberts complained of fatigue, a lack of interest and
motivation, an inability to concentrate and flashbacks.
He told Dr. Marcy that he attributed many of his symptoms
to the death of a friend during his time of service in the
Navy. Specifically, he stated his belief that Navy leaders
had responded inappropriately to the accident and improp-
erly had impeded him from directing the rescue effort. He
claimed to have a distrust of authority resulting from this
incident, and he stated that he often had nightmares about
the accident. Dr. Marcy concluded that, because of the
death of his friend, Mr. Roberts had become emotionally
and socially isolated, suffered from intrusive recollections,
drank alcohol to forget the incident, distrusted authority
and had occasional suicidal thoughts. Based on Mr. Rob-
erts’ description of the incident and his reported symp-
toms, Dr. Marcy diagnosed him with PTSD.
In May 1999, based on a review of Mr. Roberts’ file and
Dr. Marcy’s diagnosis, the VA rated Mr. Roberts as 100
percent disabled. Accordingly, it granted him full compen-
sation benefits for his PTSD, retroactive to August 4, 1993.
Mr. Roberts received these benefits—including a large
lump sum for the retroactive benefits—by direct deposit
into his bank account.
In March 2002, Mr. Roberts filed another claim with the
VA. This time, he asserted that his PTSD benefits
should have been applied retroactively to December 23,
1971, his active duty discharge date. In August 2003, the
VA agreed to pay compensation benefits retroactively
No. 07-1546 9
from July 16, 1992, but not from his date of discharge.
Mr. Roberts was not satisfied with that effective date, and,
in December 2003, he contacted Special Agent Ray Vasil of
the VA Office of Inspector General. He claimed that the
VA’s denial of an earlier effective date for his benefits
was in violation of the law, and he asked Agent Vasil to
review his claims.
In response to Mr. Roberts’ requests, Agent Vasil ob-
tained his file. In the process of reviewing his claims,
however, Agent Vasil became curious about Mr. Roberts’
statements indicating that he had directed the Holland
rescue effort. Consequently, he began an investigation
into Mr. Roberts’ claims. He questioned Mr. Roberts about
the Holland incident on two separate occasions. Agent
Vasil also obtained the accident report from the Navy,
which the VA had been unable to obtain prior to that point.
Finally, he interviewed several surviving witnesses,
including: Fuchs, the author of the original incident report;
Jack Tankersley, who had operated the forklift used
during the incident; Keith Dreher, who had extricated
Airman Holland and brought him to the awaiting corps-
man for treatment; Martin Sunglao, who claimed to have
been Airman Holland’s best friend on the base; and others
who had been at the scene.
These witnesses completely contradicted Mr. Roberts’
version of the story. They explained that airmen had no
authority on the Naples base and that they did not remem-
ber an airman running the rescue operation—which, they
noted, would have been highly unusual. They stated that
they also did not remember any other disturbance or
arrest at the scene. They told Agent Vasil that the plane had
not been raised by airbags, as Mr. Roberts had stated;
instead, it had been raised by a forklift using straps.
10 No. 07-1546
Tankersley averred that no airman had ordered him to
do anything; he also noted that he had never considered
puncturing the plane’s radome because it was made of
composite materials, and putting the forklift through the
radome would not have lifted the plane. The witnesses
consistently stated that Airman Holland had been
neither conscious nor coherent during the time that he
was trapped under the plane, and they agreed that he
had not been revived after the incident. Finally, Sunglao,
who claimed to have been Airman Holland’s best friend,
told Agent Vasil that he did not remember Mr. Roberts
and that, given this fact, it was unlikely that Airman
Holland and Mr. Roberts had been roommates or friends.
The VA Office of Inspector General compiled Agent
Vasil’s findings in a report and concluded that Mr. Roberts
had not been present during Airman Holland’s accident
and attempted rescue. Based on this report, the VA in-
formed Mr. Roberts in August 2004 that it was discon-
tinuing his compensation payments.
In June 2005, Mr. Roberts appealed this cessation of
his benefits to the Board of Veterans’ Appeals. He claimed
that his PTSD in fact had been caused primarily by a
different in-service stressor—an incident that had occurred
in December 1969, when he was arrested by the Shore
Patrol for intoxication, taken to a hospital, placed in a
straightjacket and given Thorazine. The Board of Veterans’
Appeals affirmed the VA’s decision to discontinue pay-
ment of PTSD benefits to Mr. Roberts.
Mr. Roberts then appealed the decision of the Board of
Veterans’ Appeals to the United States Court of Appeals
for Veterans Claims, where, according to the record before
us, it currently is pending.
No. 07-1546 11
C.
On September 13, 2005, while his appeal was pending
before the Court of Veterans’ Appeals, a grand jury re-
turned a superceding indictment that charged Mr. Roberts
with five counts of wire fraud, in violation of 18 U.S.C.
§ 1343. The indictment alleged that Mr. Roberts had
provided materially false information to the VA in a
scheme to obtain fraudulently veterans’ benefits. It fur-
ther alleged that Mr. Roberts had received these benefits
through interstate wire communications in the form of
electronic funds transfers from the Department of Trea-
sury’s financial center in Austin, Texas, to his bank account
in Bonduel, Wisconsin.
The matter proceeded to a jury trial. At the conclusion
of the Government’s case in chief, Mr. Roberts filed a
motion for judgment of acquittal based on insufficiency of
the Government’s evidence, which the district court
denied. On November 8, 2006, a jury found Mr. Roberts
guilty of all five charged counts. After a hearing, the
district court sentenced Mr. Roberts to 48 months’ impris-
onment as well as restitution in the amount of $262,943.52.
Mr. Roberts timely appealed his conviction and his sen-
tence.
II
DISCUSSION
A.
Mr. Roberts first submits that the district court should
have dismissed this case for lack of jurisdiction. He points
to the fact that his criminal conviction was based upon a
determination of the truthfulness of the statements that
12 No. 07-1546
he made in his claims for veterans’ benefits—an issue
currently being litigated in the appeal of his benefits
stoppage that is pending before the Court of Appeals for
Veterans Claims. Because that court has exclusive juris-
diction to review decisions of the Board of Veterans’
Appeals regarding benefit claims,3 and it has not yet made
a final determination regarding the truthfulness of his
claims, Mr. Roberts contends that the criminal case was
both premature and beyond the jurisdiction of the dis-
trict court.4
This contention is without merit. As Mr. Roberts notes
in his jurisdictional statement on appeal, the district court
had jurisdiction in this case based on 18 U.S.C. § 3231,
which provides for jurisdiction over “all offenses against
the laws of the United States.” The district court did not
“review” the decision of the Board of Veterans’ Appeals
3
See 38 U.S.C. § 7252(a) (“The Court of Appeals for Veterans
Claims shall have exclusive jurisdiction to review decisions of
the Board of Veterans’ Appeals.”); 38 U.S.C. § 511 (“The Secre-
tary shall decide all questions of law and fact necessary to a
decision by the Secretary under a law that affects the provi-
sion of benefits by the Secretary to veterans . . . the decision of
the Secretary as to any such question shall be final and con-
clusive and may not be reviewed by any other official or by
any court.”).
4
Mr. Roberts makes an additional, amorphous due process
claim based on 38 U.S.C. § 6103 and 38 C.F.R. § 14.561. His
claim seems to be that his criminal prosecution circumvents
statutory administrative remedies in place for veterans and
forces him to defend himself in two separate forums simulta-
neously. This assertion, however, was made for the first time
on appeal and therefore was forfeited. McCann v. Mangialardi,
337 F.3d 782, 786-87 (7th Cir. 2003).
No. 07-1546 13
regarding his disability rating or entitlement to benefits;
instead, it simply judged whether Mr. Roberts had com-
mitted a federal crime in the process of obtaining these
benefits.
Although both the criminal case in the district court
and the benefits appeal before the Court of Appeals for
Veterans Claims involve the question of whether Mr.
Roberts made false statements in his veterans’ benefits
claims, the criminal prosecution is independent of the
administrative review process. Indeed, 38 C.F.R. §§ 1.200-
05 requires VA employees to report information about
actual or possible criminal violations to appropriate
law enforcement entities for criminal investigation. Mr.
Roberts points to no statutory or regulatory provision that
bars criminal prosecution until a veteran’s benefits ad-
judication becomes final.5 We conclude that the district
court properly denied Mr. Roberts’ motion to dismiss
for lack of jurisdiction.
5
In his reply brief, Mr. Roberts for the first time mentions
38 C.F.R. § 14.561, which provides that “[b]efore a submission is
made to the U.S. Attorney in cases involving personnel or
claims, the General Counsel . . . or the Regional Counsel . . . 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.” Even if this regulation gave Mr.
Roberts some cognizable right to prevent early deferral, argu-
ments raised for the first time in a reply brief are waived. Pugel
v. Bd. of Trs. of Univ. of Ill., 378 F.3d 659, 669 (7th Cir. 2004).
14 No. 07-1546
B.
Mr. Roberts next challenges the sufficiency of the evi-
dence supporting his conviction. The standard of review
for sufficiency of the evidence challenges is necessarily “a
daunting one,” however: The defendant must show that,
“after viewing the evidence in the light most favorable to
the prosecution, no rational trier of fact could have found
the essential elements of the crime beyond a reasonable
doubt.” United States v. Carrillo, 435 F.3d 767, 775 (7th Cir.
2006) (internal quotation marks and alterations omitted).
We shall not “weigh the evidence or second-guess the
jury’s credibility determinations” on appeal. Id.To obtain a conviction for wire fraud under section 1343,
the Government must demonstrate: “(1) the defendant’s
participation in a scheme to defraud; (2) the defendant’s
intent to defraud; and (3) the defendant’s use of the . . .
wires . . . in furtherance of the fraudulent scheme.” United
States v. Radziszewski, 474 F.3d 480, 484-85 (7th Cir. 2007);
see also United States v. Sloan, 492 F.3d 884, 890 (7th Cir.
2007); United States v. Strickland, 935 F.2d 822, 828 (7th Cir.
1991). Mr. Roberts does not dispute that interstate wire
communications were used here; he contends only that
the Government presented insufficient evidence to
sustain a jury finding that he had participated in a
scheme to defraud.
1.
Mr. Roberts first submits that the Government failed to
prove beyond a reasonable doubt that his statements to
the VA regarding Airman Holland’s death were false.
Specifically, he contends that the jury’s decision to credit
the accident report and the statements of witnesses at
No. 07-1546 15
trial over the conflicting statements of Mr. Roberts was
unreasonable. He notes that the witnesses’ statements
were provided more than twenty years after the incident
occurred, and more than a decade after Mr. Roberts
made his statements to the VA. He also points to the fact
that the accident report had been produced only to deter-
mine how the accident happened, not to outline the
totality of the events surrounding the rescue attempt. In
his view, reliance on that report or on the stale memories
of others present at the scene to discount his account of
the incident was not rational.
We repeatedly have refused to question the credibility
of witnesses.6 We have noted that “it is not our role,
when reviewing the sufficiency of the evidence, to sec-
ond-guess a jury’s credibility determinations.”
Radziszewski, 474 F.3d at 485 (internal citations, quotation
marks and alterations omitted). Therefore, “we reverse
credibility determinations on appeal only under excep-
tional circumstances, such as where it was physically
impossible for the witness to observe that which he
claims occurred, or impossible under the laws of nature
for the occurrence to have taken place at all.” Id. (internal
quotation marks omitted). Such is not the case here.
Weaknesses in eyewitness identification testimony can be
exposed through cross-examination, see United States v.
Hall, 165 F.3d 1095, 1107 (7th Cir. 1999), and Mr. Roberts
6
See, e.g., United States v. Bailey, 510 F.3d 726, 733 (7th Cir. 2007)
(explaining the extraordinary deference accorded to jury
determinations of witness credibility); United States v. Saulter,
60 F.3d 270, 275 (7th Cir. 1995) (“Questions of credibility are
solely for the trier of fact, so such arguments are wasted on
an appellate court.”).
16 No. 07-1546
had an opportunity to cross-examine these witnesses at
trial. The jury was aware of the length of time that had
passed between Airman Holland’s death and Mr. Roberts’
trial, and it was aware of the problems inherent in using
eyewitness testimony to prove a negative. Nevertheless,
it chose to believe the testimony of the Government’s
witnesses and to disbelieve Mr. Roberts’ version of the
facts. We cannot say that the jury’s decision here was
unreasonable.
The Government produced a plethora of evidence that
suggested Mr. Roberts’ statements to the VA were false.
Eight Navy veterans testified about the events sur-
rounding Airman Holland’s death, and each substan-
tially contradicted Mr. Roberts’ version of the story.
Most notably, the veterans each testified that they did
not remember Mr. Roberts leading the mission, and that
for an airman to have assumed such responsibilities in a
rescue mission would have been extremely unusual—and
therefore memorable. They testified that the attempted
rescue mission had been orderly and well-managed, and
they did not remember anyone being arrested or re-
strained at the scene. They also stated that Airman
Holland had not been conscious at any point after he was
crushed by the plane. One witness testified that he had
been a close friend of Airman Holland, but he did not
remember Mr. Roberts; therefore, he thought it unlikely
that Airman Holland and Mr. Roberts had been close
friends. Furthermore, the Government introduced as
evidence Mr. Roberts’ service records, which showed that
his performance actually had improved after Airman
Holland’s death.
In addition to eyewitness testimony contradicting his
version of events, the Government introduced evidence
No. 07-1546 17
that Mr. Roberts had altered his story on a number of
occasions. His original February 1994 PTSD claim men-
tioned nothing about the Holland incident. When asked
in March to provide details about his in-service stressor,
Mr. Roberts failed to respond until December, nine
months later; he then provided his own handwritten
statement of the events surrounding Airman Holland’s
death. When pressed for confirmation of the in-service
stressor, Mr. Roberts sent the VA only three pages of the
accident report, despite the fact that he had obtained the
full report from the Navy. Furthermore, although he had
obtained his PTSD benefits by identifying the Holland
incident as his in-service stressor, after Agent Vasil’s
investigation, he claimed that the primary cause of his
PTSD actually had been a 1969 incident involving a strait-
jacket and Thorazine. Finally, the Government also offered
the testimony of Agent Vasil himself, who recounted
numerous conflicting statements made by Mr. Roberts
during Agent Vasil’s investigation of the claims.
The jury, after hearing all of the evidence from both
sides, found that Mr. Roberts had made false statements to
the VA. On the evidence in this record, the jury was
entitled to reach that conclusion.
2.
Mr. Roberts next contends that, even if he had made
false statements to the VA, the Government failed to
prove that such statements were material, as required by
the Supreme Court in Neder v. United States, 527 U.S. 1,
25 (1999). He submits that, because the VA merely re-
quires a claimant to establish the existence of an in-service
stressor and a diagnosis of PTSD, any false statements
18 No. 07-1546
about the extent of his involvement in the incident
would not have changed the VA’s benefits determination.
In his view, “no misrepresentation would be material, so
long as the VA could verify that the claimed incident
(Holland’s death) occurred and that the claimant was
stationed at that location at that time.” Appellant’s Br.
at 37.
Mr. Roberts misapprehends the meaning of “material” in
the context of wire fraud. As we stated in United States
v. Reynolds, 189 F.3d 521, 525 (7th Cir. 1999), “[a] statement
is material if it would be capable of influencing the
decisionmaker’s decision; . . . there is no requirement
that the statement must in fact influence the decision-
maker (that would be reliance).” Id. (emphasis added). The
materiality inquiry addresses the nature of the state-
ments made rather than the defendant’s actual ability to
influence the VA’s decision to grant veterans’ benefits. Id.The Government presented testimony from a VA claims
administrator that a veteran’s own explanation of his
role in the event had the capacity to influence the VA’s
decisions. Additionally, Dr. Marcy testified that he in fact
had relied on the information provided by Mr. Roberts
regarding both his role in the event and his relationship to
Airman Holland when he diagnosed him with PTSD. The
jury reasonably could have inferred that Mr. Roberts’ false
statements at least played a role in his obtaining his PTSD
diagnosis and, subsequently, his VA benefits. The Gov-
ernment therefore presented sufficient evidence that
Mr. Roberts’ false statements were material.
3.
Mr. Roberts further contends that the Government failed
to prove beyond a reasonable doubt that he had the
No. 07-1546 19
requisite intent to defraud. To prove an intent to defraud,
“we require a willful act by the defendant with the
specific intent to deceive or cheat, usually for the purpose
of getting financial gain for one’s self or causing finan-
cial loss to another.” United States v. Sloan, 492 F.3d 884,
891 (7th Cir. 2007) (citations and quotation marks omitted).
“Direct evidence of an intent to defraud is rare,” however,
and we have held that the Government may prove a
specific intent to defraud through “circumstantial evidence
and inferences drawn from the scheme itself that show
that the scheme was reasonably calculated to deceive
individuals of ordinary prudence and comprehension.” Id.The Government presented evidence that Mr. Roberts
made false statements to the VA in an effort to obtain
veterans’ benefits. The record might also have sup-
ported a jury determination that Mr. Roberts sincerely
believed that his statements were true and that he had
no intention to defraud the Government; however, the
jury was entitled to infer from the evidence that his
motive in making these false statements was to defraud
the Government and to obtain undeserved compensation
benefits. It is beyond our authority to disturb such a
finding on appeal.
In sum, we conclude that the Government presented
sufficient evidence for a reasonable jury to find beyond a
reasonable doubt that Mr. Roberts had committed wire
fraud.
C.
Mr. Roberts next submits that the Government failed to
disclose exculpatory evidence that was material to his
conviction in violation of the standard set forth in Brady
20 No. 07-1546
v. Maryland, 373 U.S. 83 (1963). Specifically, he alleges that
the Government deliberately failed to produce the en-
tirety of the accident report, which he contends would
have contained exculpatory evidence.
The Government correctly points out, however, that,
before the district court, Mr. Roberts never challenged
the completeness of the accident report. Despite having
had opportunities to do so, he never requested a hearing
on his Brady claim. Instead, Mr. Roberts simply made
numerous pre-trial references to his general belief that
the Government was withholding evidence from him—so
often that the district court granted a motion in limine to bar
him from making such a suggestion to the jury without first
filing a specific discovery request. Nevertheless, Mr.
Roberts declined to request a Brady hearing before the
district court. Accordingly, he has waived this issue. See
United States v. Payne, 102 F.3d 289, 293 (7th Cir. 1996).
Even if Mr. Roberts had preserved his Brady claim,
however, it is without merit. Under Brady, the Govern-
ment has the obligation to disclose any evidence in its
possession that is both material and favorable to a defen-
dant. United States v. Baker, 453 F.3d 419, 422 (7th Cir. 2006);
United States v. Fallon, 348 F.3d 248, 251 (7th Cir. 2003). This
evidence includes impeachment evidence as well as
exculpatory evidence. United States v. Bagley, 473 U.S. 667,
676 (1985); Baker, 453 F.3d at 422. To establish a Brady
violation, the defendant must prove three elements: (1) the
evidence at issue was favorable to the accused, either
because it was exculpatory or impeaching; (2) the evid-
ence was suppressed by the Government, either willfully or
inadvertently; and (3) the denial was prejudicial. Baker, 453
F.3d at 422.
Mr. Roberts’ Brady claim is based on the accident report
that was compiled during the initial investigation of the
No. 07-1546 21
events surrounding Airman Holland’s death. The report
included a number of photographs, many of which were
used by the Government at trial. Each photograph in the
report was stamped on the back with a serial number.
Based on this numbering scheme, it appears that some
photographs7 may be missing from the copy of the report
provided by the Government. Mr. Roberts claims that the
Government intentionally provided him with an incom-
plete version of the accident report because the other
photographs contained evidence that would have corro-
borated his version of the events.
Mr. Roberts provides no evidence, however, that these
allegedly missing photographs ever were included in the
accident report; nor did he request a hearing on the issue.
Neither party explains the significance of the numbering
system on the back of the photographs; it is quite possible
that the serial numbers were stamped on the photo-
graphs by the photographer or the printer well before the
report was compiled.
More significantly, Mr. Roberts did not present any
evidence that the Government is in possession of any of
these missing photographs; nor does he provide any reason
to believe that the photographs, if discovered, would be
exculpatory. See United States v. Mitchell, 178 F.3d 904,
907 (7th Cir. 1999) (noting that “mere speculation that a
government file may contain Brady material is not suf-
ficient to require a remand for in camera inspection, much
less reversal for a new trial”); United States v. Morris, 957
F.2d 1391, 1402-03 (7th Cir. 1992) (explaining that the
7
Specifically, photographs XAD-3170, 3174, 3175, 3178, 3182,
and 3187-90 appear to be missing from the collection of photo-
graphs.
22 No. 07-1546
defendant must provide some evidence other than mere
speculation or conjecture that evidence was exculpatory
and suppressed by the Government). Consequently,
Mr. Roberts’ Brady claim must fail.
D.
Finally, for the first time on appeal, Mr. Roberts main-
tains that the district court violated his rights under the
Sixth Amendment and the rule established in Apprendi v.
New Jersey, 530 U.S. 466 (2000), when it determined the
amount of loss for purposes of sentencing without sub-
mitting the issue to the jury. Because Mr. Roberts failed
to raise this issue before the district court, however, our
review is limited to plain error. United States v. Jones,
245 F.3d 645, 648 (7th Cir. 2001).
Under the sentencing guidelines, the base offense level
for a violation of 18 U.S.C. § 1343 is 7. See U.S.S.G.
§ 2B1.1(a)(1). This offense level may be increased by up
to 30 levels depending on the amount of loss attributable
to the defendant’s fraud. Id. § 2B1.1(b)(1). In the context
of wire fraud, we have defined “loss” as either “actual” or
“intended” loss, whichever is greater. See United States v.
Brownell, 495 F.3d 459, 461 (7th Cir. 2007). The sen-
tencing guidelines define actual loss as “the reasonably
foreseeable pecuniary harm that resulted from the offense,”
and intended loss as “the pecuniary harm that was in-
tended to result from the offense . . . including pecuniary
harm that would have been impossible or unlikely to
occur.” Id. (citing U.S.S.G. § 2B1.1).
Representatives of the VA testified that Mr. Roberts
actually received $262,944.12 in improper veterans’ bene-
fits based on his fraudulent PTSD claims, and that he also
No. 07-1546 23
had requested additional retroactive payments in the
amount of $288,391.26.8 Based on this testimony, the district
court found that the total loss from Mr. Roberts’ fraud
amounted to $551,334.78. As this loss was in excess of
$400,000, the court concluded that Mr. Roberts was eligible
for a 14-level increase in his offense level. See id.
§ 2B1.1(b)(1)(H).
Because the sentencing guidelines allow a 14-level
increase for a loss in excess of $400,000, compared with a
12-level increase for a loss in excess of $200,000, Mr.
Roberts contends that the jury should have been allowed
to find the total amount of loss involved beyond a rea-
sonable doubt. In his view, the district court’s finding of
loss by a preponderance of the evidence violated Apprendi.
We have conclusively rejected this argument in cases
where the sentence imposed is less than the statutory
maximum. See United States v. Dean, 414 F.3d 725, 730 (7th
Cir. 2005) (“With the guidelines now merely advisory,
factfindings that determine the guidelines sentence do
not determine the actual sentence, because the sent-
encing judge is not required to impose the guidelines
sentence; and so the Sixth Amendment is not in play.”);
United States v. Jones, 245 F.3d 645, 651 (7th Cir. 2001)
(holding that a district court may find facts related to
sentencing by a preponderance of the evidence, so long
as that determination does not result in the imposition of a
sentence in excess of the statutory maximum penalty
for that crime). As we noted in Jones, “we have repeatedly
8
The Government also requested that the district court con-
sider potential future payments in excess of $1 million; how-
ever, the court denied this request because the amount was
too speculative.
24 No. 07-1546
held that when a defendant is sentenced to a term of
imprisonment within the statutory maximum for the crime
of which he was convicted, Apprendi is beside the point.”
Jones, 245 F.3d at 645 (internal quotation marks omitted).
The statutory maximum sentence for a wire fraud
conviction under 18 U.S.C. § 1343 is 20 years’ imprison-
ment. Mr. Roberts was sentenced to 48 months’ imprison-
ment and restitution in the amount of $262,943.52. We
find no plain error in this sentence.
Conclusion
For the reasons set forth above, we affirm the judgment
of the district court.
AFFIRMED
USCA-02-C-0072—7-7-08