The opinion of the court was delivered by: Royce C. Lamberth Chief Judge United States District Court
Before the Court are several motions that will determine the scope and nature of the defendant's upcoming retrial for making a false claim and theft of public money. The Court has reviewed the parties' motions, the applicable law, and the entire record in this case extensively. Its resolution of these motions is intricate, piecemeal, and not amenable to quick synopsis in this introductory paragraph. Therefore, the Court offers the following explanation of this case's complex factual and procedural background, a summary of the parties' various motions and arguments, and its own explanation of its reasoning in resolving them.
I.Facts and Procedural History
a.Coughlin's September 11th Victim Compensation Fund Claim
Charles Coughlin, a United States naval officer, was working at the Pentagon on September 11, 2001, when terrorists crashed a hijacked plane into the building just seventy-five feet from his desk. In December 2003, Coughlin submitted a claim to the September 11th Victim Compensation Fund (VCF), which Congress created to compensate people who were injured in the attack. He claimed that the crash caused the ceiling over his desk to collapse, that flying debris hit him, and that he struck his head while rescuing people at the disaster site.
On January 22, 2004, Coughlin's attorney, Walter Laake, hand-delivered Coughlin's claim application, with an attached cover letter, to the VCF. On February 3, Laake mailed the VCF a corrected version of the cover letter. The January 22nd and February 3rd documents explained Coughlin's claim that his 9/11 injuries caused him severe and permanent disabilities, including neck, head, and upper back pain; restricted range of motion; and weakness and numbness in his left arm and hand. Coughlin said that his injuries prevented him from playing certain sports, and his medical needs forced him to take time off from work. He claimed that he couldn't complete normal household chores like painting, electrical wiring, and installing a patio. Instead, he said, he had to pay others to do them and included a list of ten checks he had written for such replacement services. His application made clear, though, that he wasn't seeking compensation for those replacement services or any other economic damages. Instead, he sought $180,000 in compensation solely "for the personal injuries that he suffered."
Initially, the VCF determined that Coughlin was ineligible for compensation because he hadn't sought medical treatment within the time allowed by the Fund. On February 17, 2004, though, Coughlin appealed that determination, explaining the delay and asking for a waiver of ineligibility that was available to rescue workers. On February 20 and March 9, he submitted additional documentation to support his appeal, including certified medical records and a doctor's report. The VCF then reversed itself and, on April 14, informed Coughlin that he was eligible for a presumed award of $60,000. That award represented zero dollars of economic loss and $60,000 of non-economic loss. It advised Coughlin that he could either accept that amount or request an appeal hearing. On April 30, Coughlin's attorney mailed the VCF a letter asking for such a hearing.
At the May 13, 2004 appeal hearing, Coughlin's attorney told the hearing officer that Coughlin had two reasons for seeking review. The $60,000 presumed award for non-economic loss was, he said, "unfair and inadequate and in and of itself would give rise to a request for review." But the presumed award was also an egregious error because it "provided no compensation for economic loss to the Claimant." The attorney acknowledged that the failure to award compensation for economic loss was not the VCF's fault. He explained that "one of the things that we didn't spell out in the initial claim and that the claim evaluator really didn't have before him-and it was an oversight on my part . . . was the fact that there was a past, present, and future loss of earnings component to this claim, which was never even made initially."
To support his appeal, Coughlin submitted ten new exhibits, nine of which addressed his economic loss claim. These included a letter documenting salary he lost from taking off from work for doctor appointments and physical therapy. He also offered thirty-two carbon copies of checks purportedly reflecting payments to others for household chores he could no longer perform himself. Finally, he provided a six-page schedule setting out and totaling his past and future economic claims. The VCF rendered its final decision on June 1, awarding Coughlin $331,034: $151,034 for economic damages and the entire $180,000 he had requested for non-economic damages for his personal injury.
A grand jury indicted Coughlin on October 31, 2008, charging that, "[f]rom in or about December 2003, and continuing until in or about June 2004," he "willfully and knowingly devised, and intended to devise, a scheme and artifice to defraud the VCF and to obtain money by means of false and fraudulent pretenses and representations." Indictment ¶ 6. The indictment alleged that Coughlin submitted false and misleading information about his pre-and post-September 11 medical condition and about his loss of earnings.
The indictment contained five counts of mail fraud in violation of 18 U.S.C. § 1341-one for each letter that Coughlin sent or caused to be sent to the VCF while pursuing his claim. Count One was for the February 3, 2004 version of the cover letter that his attorney originally sent to the VCF on January 22, 2004. Count Two was for his February 17 appeal of the VCF's ineligibility decision. Count Three was for the February 20 letter that contained certified copies of his medical records. Count Four was for the March 9 letter that contained additional exhibits that Coughlin offered to support his rescue activities and physical injuries. Count Five was for his April 30 request for an appeal hearing regarding the amount of the VCF award.
The indictment also included two non-mail-fraud counts. Count Six charged Coughlin with making a false and fraudulent claim in violation of 18 U.S.C. § 287. And Count Seven charged him with theft of public money in violation of 18 U.S.C. § 641.
After a month-long trial, a jury acquitted Coughlin on three of the five mail fraud charges-Counts Two, Three, and Five. It was unable to reach a verdict on the other four counts, and on April 15, 2009, the presiding judge, Honorable Henry Kennedy, granted a mistrial.
The government sought to retry Coughlin on all of the hung counts. Coughlin objected, invoking a prong of the double jeopardy analysis known as "issue preclusion" or "collateral estoppel." In Ashe v. Swenson, the Supreme Court explained that this doctrine bars the government from prosecuting a defendant on a charge that depends on facts that a previous acquittal on a different charge necessarily decided in the defendant's favor. 397 U.S. 436, 443-- 44 (1970).
At the time of the April 15 mistrial, the rule in the D.C. Circuit was that Ashe didn't bar retrial in a case like Coughlin's. In United States v. White, the Circuit held that, where the same jury acquits a defendant on some charges and can't reach a verdict as to others, the acquittals couldn't have been based on a fact upon which the hung counts depended. 936 F.2d 1326, 1329 (D.C. Cir. 1991). Adhering to White, Judge Kennedy denied Coughlin's double jeopardy motion. On June 8, 2009, a new trial commenced on the two remaining mail fraud counts, as well as on the false claim and theft counts.
In the middle of the second trial, the Supreme Court decided Yeager v. United States, --- U.S. ---, 129 S.Ct. 2360 (June 18, 2009). Yeager expressly overruled the decisions of those circuits-including the D.C. Circuit-that had held that a conflict between acquittals and hung counts barred the application of issue preclusion. 129 S.Ct. at 2365 (citing White, 936 F.2d 1326). Relying on Yeager, Coughlin promptly renewed his motion to bar retrial. He argued that the only disputed issue at the first trial was his fraudulent intent; that by acquitting him on some mail fraud counts, the jury necessarily found that he had acted in good faith when he sought money from the VCF; and that this finding precluded liability on all of the remaining counts. On June 30, Judge Kennedy denied Coughlin's motion, concluding that, although his argument regarding the two mail fraud counts was not frivolous, it failed to satisfy the Yeager test. As for the false claim and theft counts, Judge Kennedy held that Coughlin's double jeopardy argument simply lacked legal merit.
Coughlin filed both an appeal of Judge Kennedy's decision as well as an emergency motion to stay the ongoing retrial. A special panel of the D.C. Circuit stayed the trial pending the appeal. The panel found the stay warranted in light of the "unusual circumstances presented" by Yeager's mid-trial reversal of Circuit precedent, and in light of Judge Kennedy's determination that Coughlin's double jeopardy claim wasn't entirely frivolous. It took the D.C. Circuit a good deal of time to decide the case, and eventually the parties moved for-and Judge Kennedy- granted a mistrial.
d.The D.C. Circuit's Decision
The D.C. Circuit reversed Judge Kennedy's decision to allow the government to retry Coughlin on the two remaining mail fraud counts and affirmed his decision allowing retrial of the false claim and theft counts. United States v. Coughlin, 610 F.3d 89 (D.C. Cir. 2010).Coughlin argues that although the D.C. Circuit's decision allows for retrial on the false claims and theft counts, it greatly restricts the universe of evidence available to the government for reprosecution. See, e.g., Def.'s Resp. Government's Not. Intent 3, Dec. 20, 2010, ECF No. 125. Understanding his arguments and this Court's resolution of them requires familiarity with the D.C. Circuit's decision in this case. Accordingly, this Court proceeds to explain the D.C. Circuit's holding and reasoning in some detail.
The D.C. Circuit first set forth the principles of issue preclusion and then applied them to the hung counts-first the mail fraud counts and then the false claim and theft counts. Coughlin, 610 F.3d at 96.The Court explained that the Double Jeopardy Clause bars more than just retrial of acquitted charges. Id. It also "'precludes the Government from relitigating any issue that was necessarily decided by a jury's acquittal in a prior trial.'" Id. (quoting Yeager, 129 S.Ct. at 2365-- 66). "'To decipher what a jury has necessarily decided,'" Coughlin and Yeager reaffirmed, "courts should 'examine the record of a prior proceeding, taking into account, the pleadings, evidence, charge, and other relevant matter, and conclude whether a rational jury could have grounded its verdict upon an issue other than that which the defendant seeks to foreclose from consideration.'" Id. (quoting Yeager, 129 S.Ct. at 2367 (quoting Ashe, 397 U.S. at 444)).
The first question the Court of Appeals faced was whether, in acquitting Coughlin of three of the five mail fraud counts, the jury "necessarily decided facts in Coughlin's favor that constitute an essential element of the remaining mail fraud counts." Id. at 97. It divided its analysis of that question into two parts: "What facts were necessarily decided by the jury's acquittals on Counts Two, Three, and Five? And, do those facts make up an essential element of the remaining counts?" Id.
To answer the first question, the Court of Appeals first discussed what the government had to prove to convict Coughlin of mail fraud. Id. Mail fraud requires proof of "'(1) a scheme to defraud, and (2) the mailing of a letter, etc., for the purpose of executing the scheme.'" Id. (quoting United States v. Reid, 533 F.2d 1255, 1264 (D.C. Cir. 1976) (quoting Pereira v. United States, 347 U.S. 1, 8 (1984). The Court of Appeals went into more detail about the "scheme to defraud" element, making clear that fraudulent intent for mail fraud purposes requires two things: "[the defendant] must both have a fraudulent scheme in mind and intend that the mailing further that scheme." Id. at 97--98 (citing 18 U.S.C. § 1341 (providing that the defendant must have "devised or intend[ed] to devise a[ ] scheme" to defraud and must have caused an item to be delivered by mail "for the purpose of executing such scheme")).
The Court of Appeals concluded that "in acquitting Coughlin on three counts of mail fraud, the jury necessarily found that he lacked fraudulent intent when he mailed each of the three letters referenced in those counts." Id. at 98. Its reasoning was simple. If Coughlin had a fraudulent scheme in mind at the time of the acquitted mailings, then those mailings would have furthered that scheme, "and it would not have been rational for the jury to have thought otherwise or to have believed Coughlin thought otherwise." Id. at 99. Therefore, the jury necessarily decided that Coughlin didn't have a fraudulent scheme in mind when he mailed the three letters referenced in those counts.
Next, the Court of Appeals asked "whether the jury's finding regarding Coughlin's intent with respect to the acquitted counts precludes proof of an essential element of the two mail fraud counts as to which the jury hung." Id. at 100. The acquitted counts were Counts Two, Three, and Five; the hung counts were Counts One and Four. The Court of Appeals reasoned that "if Coughlin had no fraudulent intent on February 17, February 20, or April 30-the dates at issue in the acquitted counts-there was no basis for concluding that he had one in mind on February 3 or March 9 either [(the dates at issue in the hung counts)]." Id. The Court of Appeals rejected any "bouncing ball" theory of fraudulent intent that would suggest that "Coughlin harbored a fraudulent scheme on February 3 (Count One), abandoned it on February 17 and 20 (Counts Two and Three), revived it on March 9 (Count 4), and abandoned it again prior to seeking a hearing on April 30 (Count Five)." Id. Thus, "in rendering a verdict on the acquitted counts, the jury necessarily decided that Coughlin lacked fraudulent intent during the entire period encompassed by the charged mailings . . . [a]nd because fraudulent intent is an essential element of those counts, the Double Jeopardy Clause bars their retrial." Id. (citations omitted).
Having decided that the Double Jeopardy Clause barred retrial of the hung mail fraud counts, the Court of Appeals went on to consider whether it also barred retrial of Counts Six and Seven. Id. at 100. The question was whether the jury's finding that Coughlin had no fraudulent mail fraud scheme at any point during the period encompassed by the charged mailings necessarily meant that he lacked fraudulent intent for false claim and theft purposes.
The Court of Appeals acknowledged that both the false claim and theft charges-like the mail fraud charges-require proof of fraudulent intent. The Court made clear, however, that the statutes' fraudulent intent standards differ, noting that for false claims purposes, a claim "'is fraudulent if any part of it is known to be untrue and made . . . with the intent to deceive the governmental agency to which it was submitted." Id. at 101 (quoting Trial Tr. 82, Apr. 8, 2009); id. at 105 n.7 ("We also note that, unlike the mail fraud statute, there is no 'scheme' requirement in the text of either the false claim or the theft statute.").
Although the jury necessarily decided that Coughlin lacked fraudulent intent for mail fraud purposes before May 2004, the Court of Appeals held that it didn't necessarily decide anything about his state of mind after that date. Id. at 101--02. In holding that this Court could retry Coughlin for false claims and theft but not for the hung mail fraud charges, the D.C. Circuit distinguished between the indictment's "broader scheme" and its "narrower scheme." Id. at 105--
07. Coughlin's indictment would have allowed a jury to convict him for acting on one broad scheme to defraud the government from December 2003 through June 2004. Id. at 101--02. That broader scheme would have included each of Coughlin's mailings seeking compensation for his personal injuries as well as his economic damages claims that he only raised after April 30 at his VCF appeal hearing. Id. at 106--07. By acquitting him of three of the mail fraud charges, however, the jury necessarily decided that there was a reasonable doubt regarding whether Coughlin had a fraudulent scheme before May. Id. at 101.
Although the jury rejected the broader scheme theory of liability, the indictment also made it possible for the jury to convict Coughlin of a narrower scheme to defraud the VCF. Id. at 107. The narrower scheme theory concedes that Coughlin was injured on 9/11 but contends that he exaggerated the extent of his injuries and made false claims to the VCF in order to amplify his economic damages claim. Id. The narrower scheme theory only involves claims Coughlin made after April 30 because Coughlin made no economic damages claims before May 2004. Id. Thus, April 30 was a date critical to the D.C. Circuit's analysis. It was the date of the last charged- and last acquitted-mailing; it was the latest date that the jury necessarily found Coughlin lacked fraudulent intent; and it marked the end of Coughlin's personal-injury-only VCF claim and the inception of his broader personal-injury-plus-economic-damages VCF claim. Because the jury only acquitted Coughlin of pre-May mail fraud charges, the D.C. Circuit determined that the Double Jeopardy Clause didn't bar another jury from convicting Coughlin under the indictment's narrower scheme for false claims and theft associated with his economic damages claims, which were all made after April 30. Id. at 110.
The legal issues this Court must resolve before retrial aren't extremely complicated, but the case's involved procedural history and voluminous motions-which constantly talk past each other and argue on several fronts simultaneously-make accessing them about as difficult as cracking a coconut in a padded cell armed only with a toothpick. To minimize confusion and maximize efficiency, the Court will explain and resolve Coughlin's lynchpin argument first. That resolution will render many of the parties' other arguments moot, and those that remain can be quickly dispatched.
Coughlin argues that although the D.C. Circuit allowed a retrial on the false claims and theft counts, its decision to bar retrial of the hung mail fraud counts drastically limits the universe of evidence the government may use at the upcoming retrial. See, e.g., Not. Intent 3, ECF No. 125. He's primarily concerned with two very broad categories of evidence that the government used at the first trial: the so-called medical and post-9/11 athletic activities evidence.
Id. at 4--32. The Court has included an appendix to this opinion that contains a description of the specific pieces of evidence at issue. For the purposes of the analysis that follows, a more general description of the evidence will suffice.
The medical evidence involves Coughlin's medical records and the testimony of several doctors. The government used this evidence at the first trial to try to prove the broader scheme theory by arguing-among other things-that Coughlin lied about his 9/11 injury, didn't disclose important aspects of his medical records that would have shown that injuries he sustained before 9/11 actually explain his disability, and he lied about his post-9/11 medical condition and future medical needs.
The post-9/11 athletic activities evidence describes Coughlin's successful completion of a sub-four hour marathon shortly after 9/11, his active involvement on two lacrosse teams, and his regular basketball habits. At the first trial, the government introduced this evidence to try to prove-among other things-that Coughlin wasn't really injured on 9/11, that he lied about the severity of his disabilities, and that some of his disabilities could be explained by injuries he sustained playing these sports rather than from the 9/11 events.
Coughlin argues that the Double Jeopardy Clause's issue preclusion doctrine renders that evidence inadmissible. See, e.g., Def.'s Mot. Limine 9, Dec. 1, 2010, ECF No. 121. He points out that this evidence was relevant to the first jury's consideration of the mail fraud charges, and even after evaluating that evidence, the jury acquitted him because it found that he lacked fraudulent intent for mail fraud purposes. Id. at 12--14. He argues that in concluding that he lacked that fraudulent intent, the jury necessarily rejected each of the government's arguments that he lied or attempted to deceive the VCF before May. Id. at 14. Therefore, it necessarily decided that the government's contentions based on the medical and athletic activities evidence were meritless. Id. To allow it to make those same arguments again, then, would be tantamount to permitting the government to relitigate an issue the first jury necessarily decided in his favor.
If Coughlin is right about that, then the government's case at retrial would be drastically restricted. See, e.g., Def.'s Resp. Government's Supplemental Mot. Seeking Pretrial Evidentiary Rulings 51, March 25, 2011, ECF No. 136 ("The preceding sections figuratively and literally highlights that the 'narrower scheme,' as defined by the Court of Appeals, is indeed quite narrow. It is so narrow that the medical records that the Government seeks to introduce have no relevance to the 'narrower scheme.'").Every argument that Coughlin exaggerated the severity of his 9/11 injury would automatically be off-limits along with any evidence that the jury might have considered in conjunction with those arguments. Evidence supporting arguments about Coughlin's post-April 30 economic submissions would be inadmissible as well because many of them merely repeated arguments about pre-May behavior that Couglin argues are off-limits. Id. at 50--51.
At a January 27, 2011 motions hearing, Judge Kennedy agreed with Coughlin and held that the medical and athletic activities evidence would be inadmissible at the upcoming trial and explained that permitting the government to introduce evidence that tended to show that Coughlin had made false or fraudulent statements before May 2004 would allow it to undermine the first jury's finding that he had no fraudulent intent before that date. Hr'g. Tr. 8, Apr. 7, 2011. The government moved for reconsideration of that decision, and having taken more time to review the parties' arguments, the relevant law, and Judge Kennedy's prior ruling, this Court concludes that it must reconsider the prior ruling.
As the Court will explain at length below, the Double Jeopardy Clause simply doesn't apply to the evidentiary issues Coughlin raises. But even if the Double Jeopardy Clause did apply here, the evidence at issue would still be admissible because Coughlin has failed to "demonstrate that the issue whose relitigation he seeks to foreclose was ...