Before the Court is defendant's Motion  for a new trial and Motion for a judgment of acquittal. Upon consideration of the defendant's Motion, the government's response , the defendant's reply , the applicable law, and the entire record in this case, the Court will deny defendant's Motion for a new trial and Motion for a judgment of acquittal for the reasons set forth below.
A.Coughlin's September 11th Victim Compensation Fund Claim
Defendant Charles Coughlin, a United States naval officer, was working at the Pentagon on September 11, 2001, when terrorists crashed a hijacked airplane 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 head to collapse, that flying debris hit him, and that he struck his head while rescuing people at the disaster site. Coughlin's submission to the VCF claimed that Coughlin's 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 that his medical needs forced him to take time off from work. Rather than completing the household chores as he had previously, Coughlin claimed that he had to pay others to do them and included a list of ten checks that he had written for such replacement services. However, his application sought $180,000 in compensation solely for personal injuries and not for replacement services or any other economic damages.
The VCF initially determined that Coughlin was ineligible for compensation because he had not sought medical treatment within the timeframe allowed by the Fund. On February 17, 2004, Coughlin appealed that determination, explaining that 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. On April 14, the VCF reversed itself and informed Coughlin that he was eligible for a presumed award of $60,000 for non-economic loss. The VCF 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 requesting such a hearing.
At the May 13, 2004 appeal hearing, Coughlin's attorney told the hearing officer that Coughlin sought review because the $60,000 presumed award for non-economic loss was "unfair and inadequate" and "provided no compensation for economic loss" to Coughlin. Coughlin's attorney further explained that there was a past, present, and future loss earnings component to Coughlin's claim that was never 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; thirty-two carbon copies of checks purportedly reflecting payments to others for household chores he could no longer perform himself; and a six-page schedule setting out and totaling his past and future economic claims.
On June 1, 2004 the VCF rendered its final decision, 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.
On October 31, 2008, a grand jury of the United States District Court for the District of Columbia returned an indictment charging the defendant with five counts of mail fraud, one count of filing a false, fictitious, and fraudulent claim, and one count of theft of government property, in violation of 18 U.S.C. §§ 1341, 287, and 641, respectively.
On March 10, 2009, a jury was sworn and trial proceedings began against the defendant with Judge Kennedy presiding. After a month-long trial and four days of jury deliberations, the jury acquitted the defendant of three counts of mail fraud (Counts Two, Three, and Five), but was unable to reach a verdict on the other two mail fraud counts (Counts One and Four), the count of filing a false, fictitious and fraudulent claim (Count Six), and the count of theft of government property (Count Seven). Judge Kennedy ordered a mistrial as to these deadlocked counts and scheduled the retrial for June 8, 2009.
The government sought to retry Coughlin on all of the hung counts, but before the second trial was to begin the defendant filed a motion to bar retrial under the Double Jeopardy Clause. In his motion the defendant claimed that, in acquitting him on the three mail fraud counts, the jury necessarily made findings that barred retrial on the remaining counts. The defendant acknowledged that the D.C. Circuit's holding in United States v. White, 936 F.2d 1326 (D.C. Cir. 1991), required the trial court to deny his motion, but noted that the Supreme Court had heard oral argument in Yeager v. United States, a case that might overturn this binding precedent. However, Judge Kennedy adhered to the rule in White-that where the same jury acquits a defendant on some charges and cannot reach a verdict as to others, the acquittals could not have been based on a fact upon which the hung counts depended-and denied the defendant'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 issued its decision in Yeager v. United States, 129 S. Ct. 2360 (June 18, 2009). Yeager expressly overruled D.C. Circuit law with respect to the double jeopardy analysis to be applied when a jury acquits on some counts and fails to reach verdicts on others. Relying on Yeager, the defendant renewed his motion to bar retrial, which Judge Kennedy denied. The defendant then filed an interlocutory appeal with the D.C. Circuit and sought a stay of the trial proceedings pending appellate review. Judge Kennedy denied the defendant's request, concluding that it would be inappropriate to further delay the trial proceedings to permit the interlocutory appeal. The defendant sought an emergency stay from the D.C. Circuit, which was granted. Judge Kennedy eventually declared a mistrial.
The D.C. Circuit reversed Judge Kennedy's decision to allow the government to retry the defendant 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). In accordance with its decision, the D.C. Circuit directed the trial court to dismiss counts One and Four of the indictment and remanded for further proceedings. The opinion made clear that because the jury had only acquitted defendant of pre-May 2004 mail fraud charges, the Double Jeopardy Clause did not 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, 2004. Id. at 110.
However, the D.C. Circuit also held that retrial was permissible on Counts Six and Seven because the government's theory at trial encompassed an alternative "narrower scheme theory." Id. at 101--02. To narrow the indictment to comply with the D.C. Circuit's mandate, the government retyped the indictment to reflect the narrower scheme that it sought to prove as to Counts Six and Seven. This retyped indictment indicated that at retrial the government's case would be temporally limited to the period of May 2004 to June 2004, the charges the government could seek to prove were related solely to the $151,034 claim for economic damages, the government conceded that the defendant sustained ...