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United States v. Coughlin

United States District Court, District of Columbia

May 4, 2017

UNITED STATES OF AMERICA
v.
CHARLES E. COUGHLIN, Defendant.

          MEMORANDUM OPINION

          Royce C. Lamberth United States District Judge

         I. INTRODUCTION

         Defendant Charles Coughlin was found guilty by a jury of filing a false claim and theft of public money in connection with Mr. Coughlin's presentment of a claim for compensation from the September 11th Victim Compensation Fund ("VCF") for injuries sustained during the terrorist attack on the Pentagon on September 11, 2001. On December 20, 2011, he was sentenced to concurrent terms of 41 months imprisonment and three years of supervised release [ECF No. 181]. Mr. Coughlin appealed, and his convictions were affirmed on June 14, 2013.

         On December 16, 2014, Mr. Coughlin filed a motion to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255, claiming ineffective assistance of counsel [ECF No. 204]. On April 4, 2016 and on May 18, 2016 Mr. Coughlin, without the assistance of counsel, filed amended § 2255 motions [ECF Nos. 217, 221].[1] This Court, deeming these pro se filings as motions for leave to amend his original motion under Rule 15, ordered the government to advise the Court of its position regarding Mr. Coughlin's motions for leave to amend [ECF No. 226]. The government opposes granting Mr. Coughlin leave to amend to assert all but one of his new claims [ECF No. 227]. For the reasons stated below, this Court will grant in part and deny in part Mr. Coughlin's motions for leave to amend.

         II. BACKGROUND

         Mr. Coughlin was working in the Pentagon on September 11, 2001 near where the hijacked airplane struck the building. In December 2003, he submitted a claim to the VCF claiming that the attack caused the ceiling to collapse on him, that he was hit by flying debris, and that he struck his head while helping to rescue other victims, which caused him severe and permanent disabilities and pain preventing him from engaging in certain physical activity and forcing him to take time off from work. The government, believing that Mr. Coughlin had concocted a scheme to defraud the VCF by submitting false and misleading information about his medical condition and loss of earnings, charged Mr. Coughlin with several counts of mail fraud, submitting a false claim, and theft of public money. The government alleged that the scheme lasted from December 2003 through June 2004.

         At Mr. Coughlin's first trial, the government called five doctors to attack his representations to the VCF that he had sustained a neck injury and disability in the September 11th attack on the Pentagon, and entered into evidence his medical records and demonstrative videos of surgical procedures, as well as evidence regarding his athletic abilities in order to establish that Mr. Coughlin knew that he had not sustained an injury on September 11th, that he misrepresented the impact of the September 11th attack on his athletic abilities, and to undermine his economic damages claims related to his inability to perform household chores. Mr. Coughlin's trial counsel called three expert witnesses to counter the government testimony including an expert in orthopedic surgery and spinal disorders and a board certified doctor in emergency medicine. The first trial resulted in a mistrial after the jury deadlocked on several counts. Although the jury acquitted Mr. Coughlin of several counts of mail fraud (Counts Two, Three, and Five), it failed to reach a verdict on the other mail fraud counts (Counts One and Four), and on the false claim count (Count Six), and on the theft of public money count (Count Seven) [ECF No. 43]. Mr. Coughlin claims that this was because the expert testimony provided by the defense experts was able to refute the government's evidence.

         The government then sought to retry Mr. Coughlin on Counts One and Four (mail fraud), and Counts Six (false claim) and Seven (theft of public money). A new trial commenced over Mr. Coughlin's objections that it violated the Double Jeopardy Clause. At the second trial, defense counsel again presented expert witness testimony to counter the government's expert witnesses. Due to an intervening Supreme Court opinion in Yeager v. United States, 557 U.S. 110 (2009), Mr. Coughlin filed an interlocutory appeal, renewing his double jeopardy arguments. The Court of Appeals considered "whether, in [acquitting Mr. Coughlin on Counts Two, Three, and Five for mail fraud], the jury necessarily decided facts in Coughlin's favor that constitute an essential element of the remaining mail fraud counts, Counts One and Four, " in which case the Double Jeopardy Clause would preclude their reprosecution. United States v. Coughlin (Coughlin I), 610 F.3d 89, 97 (D.C. Cir. 2010). The five allegedly fraudulent mailings occurred on February 3, 2004 (Count One), February 17, 2004 (Count Two), February 20, 2004 (Count Three), March 9, 2004 (Count Four), and April 30, 2004 (Count Five). Again, the jury found that Mr. Coughlin lacked the requisite fraudulent intent for Counts Two, Three, and Five, and therefore rendered verdicts of not guilty. The Court of Appeals thus concluded that "the jury necessarily decided that Coughlin lacked fraudulent intent during the entire period encompassed by the charged mailings-including those mailings cited in the hung counts. And because fraudulent intent is an essential element of those counts, the Double Jeopardy Clause bars their retrial." Id. at 100.

         The Court of Appeals found, however, that with respect to Counts Six and Seven, for making a false claim and theft of public money, the Double Jeopardy Clause did not bar reprosecution. Id. at 103-04. It stated "while we thus treat fraudulent intent as an essential element of both counts for the purposes of this case, it is not essential that Coughlin had such intent at every point between December 2003 and June 2004, the period encompassed by the indictment." Id. at 101. The Court concluded that "[i]n finding that no fraudulent scheme existed on or before April 30, the jury did not necessarily decide anything about Coughlin's state of mind after that date. To put it another way: if the jury believed that Coughlin only made fraudulent misrepresentations at the May 13 hearing, it could still have acquitted him of mail fraud regarding the April 30 mailing." Id. at 101-02. Therefore, it concluded that the jury did not necessarily decide that Mr. Coughlin lacked the requisite fraudulent intent for Counts Six and Seven, and therefore that the Double Jeopardy Clause did not bar a retrial on those counts. The district court accordingly declared a second mistrial.

         When the third trial commenced, both parties sought pretrial rulings regarding the admissibility of medical and athletic evidence. Judge Kennedy ruled in Mr. Coughlin's favor, precluding the government from using medical records and athletic activity evidence to prove that Mr. Coughlin's representations regarding his injury to the VCF were fraudulently made. Thus, Mr. Coughlin's trial counsel had no need to bring expert testimony to refute medical records or athletic activity evidence, as such evidence was precluded by Judge Kennedy. When the case was reassigned to the undersigned Judge, the Court granted in part the government's motion for reconsideration and ruled that the medical records and athletic activity evidence could be offered at trial. Mr. Coughlin claims that such a ruling showed that the evidence was central, intrinsic, and vital to the government's case, but that his trial counsel failed to adapt his strategy to the Court's ruling. The expert testimony introduced in the first two trials by defense counsel was not brought into evidence in the third trial to refute the government's case in chief.

         In Mr. Coughlin's original motion to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255, he claims that he was denied effective assistance of counsel when his trial counsel failed to call expert witnesses to testify on his behalf. Mr. Coughlin argues that his counsel's performance was deficient because, in the face of expert testimony presented by the government, Mr. Coughlin's counsel made no attempt to ensure that this testimony would be countered by the defense experts who had previously been effective in the first trial, did not discuss expert testimony with Mr. Coughlin, did not conduct an investigation into whether the same experts who previously testified were available, and did not request CJA money to pay for expert witnesses. No defense experts were called to testify in the third trial. Mr. Coughlin argues that he was prejudiced by this deficient performance because the expert testimony presented by the government had to be refuted by expert testimony as such evidence was central to the determination of whether Mr. Coughlin exaggerated the extent of his injuries. He argues that there is a reasonable probability that he would not have been convicted had his trial counsel conducted an adequate investigation into the medical evidence and called an expert to testify. He argues that he was successful in the first trial and that the only difference between the two trials was his counsel's failure to rebut the medical and physical activity evidence presented by the government with defense experts.

         On April 4, 2016, Mr. Coughlin filed a motion for leave to amend his § 2255 motion. On May 18, 2016, Mr. Coughlin filed a second motion for leave to amend, asking that it be substituted for the motion filed on April 4, 2016. Neither motion was filed with the assistance of counsel who filed his original § 2255 motion. He claims that the amended motion was filed because his counsel failed to adequately "highlight the alleged false and fraudulent pretenses and representations impacted by the Appellate Court's critical finding that 'the jury necessarily decided that Coughlin lacked fraudulent intent during the entire period encompassed by the charged mailings.'" Amended Motion at 2, ECF No. 221. Mr. Coughlin raises nine new bases for his claim of ineffective assistance of counsel:

(1) Trial attorney John Bourgeois and Appellate attorney Steven Klepper failed to request CJA funds to ensure expert medical witness testimony at defendant's third trial;
(2) Trial attorney John Bourgeois/Appellate attorney Steven Klepper failed to conduct a fact-intensive analysis based on the Coughlin I critical finding to identify the overwhelming testimony, copious physical evidence, and specific jury instructions provided to the Trial I jury validating that Coughlin's 1/22/04 - 9/11 Victim's Compensation Fund (VCF) economic damage claim submission was material to both the VCF in determining Coughlin's 4/14/04 ...

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