U.S.A v. Coughlin, No. 09-3062

• Decision Date: 29 June 2010
• Docket Number: No. 09-3062,09-3063.
• Citation: 610 F.3d 89
• Parties: UNITED STATES of America, Appelleev.Charles E. COUGHLIN, Appellant.
• Court: U.S. Court of Appeals — District of Columbia Circuit

610 F.3d 89

UNITED STATES of America, Appelleev.Charles E. COUGHLIN, Appellant.

Nos. 09-3062, 09-3063.

United States Court of Appeals District of Columbia Circuit.

Argued Nov. 6, 2009.

Decided June 29, 2010.

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Appeals from the United States District Court for the District of Columbia (No. 1:08-cr-00334-HHK-1).

Steven M. Klepper argued the cause for appellant. With him on the briefs was John A. Bourgeois.

Amanda Winchester, Assistant U.S. Attorney, argued the cause for appellee. With her on the brief were Roy W. McLeese III and Susan B. Menzer, Assistant U.S. Attorneys.

Before: TATEL, GARLAND, and KAVANAUGH, Circuit Judges.

Opinion for the Court filed by Circuit Judge GARLAND.

GARLAND, Circuit Judge:

The government accused defendant Charles Coughlin of defrauding the September 11th Victim Compensation Fund, which awarded him $331,034 for damages he said he sustained as a result of the September 11, 2001 attack on the Pentagon. Coughlin was indicted on five counts of mail fraud, one count of making a false and fraudulent claim, and one count of theft of public money. A jury acquitted him on three of the mail fraud counts, but was unable to reach a verdict on the remaining counts. Coughlin argues that a retrial on the remaining counts would run afoul of the Double Jeopardy Clause, which “precludes the Government from relitigating any issue that was necessarily decided by a jury's acquittal in a prior trial.” Yeager v. United States, --- U.S. ----, 129 S.Ct. 2360, 2366, 174 L.Ed.2d 78 (2009) (citing Ashe v. Swenson, 397 U.S. 436, 90 S.Ct. 1189, 25 L.Ed.2d 469 (1970)).

We agree with Coughlin that the Double Jeopardy Clause bars his retrial on the remaining mail fraud counts, and we therefore direct their dismissal. We disagree, however, that a retrial on the false claim and theft counts would require the government to relitigate any issue that the jury necessarily decided in Coughlin's favor. Accordingly, the government may retry him in a case limited to those counts.

I

Coughlin, an officer in the United States Navy, was working in the Pentagon when terrorists crashed a hijacked plane into the building on September 11, 2001. In December 2003, Coughlin submitted (by fax and subsequent hand-delivery) a claim to the September 11th Victim Compensation Fund (VCF), which Congress created to compensate people who were injured in the attacks of that day. Coughlin's papers averred that the plane struck the Pentagon seventy-five feet from where he was working and caused the ceiling over his desk to collapse. He stated that he was hit by flying debris and that he struck his head while participating in rescue efforts in a smoke-filled area.

On January 22, 2004, Coughlin's attorney, Walter Laake, hand-delivered a claim application, with an attached cover letter, to the VCF. On February 3, Laake mailed the VCF a corrected version of the cover letter. Together, the papers stated that the injuries Coughlin suffered on 9/11 caused him severe and permanent disabilities. These included neck, head, and upper back pain; restricted range of motion; and weakness and numbness in his left arm and hand. Due to his injuries, Coughlin said, he could no longer play certain sports, and his medical needs forced him to take time off from work. As a further consequence, he was no longer able to take care of household maintenance tasks like painting, electrical wiring, and installing a patio. Instead, he said, he had to pay others to do these tasks, and he included a list of ten checks he had written for that purpose. The application made clear, however, that Coughlin was not seeking compensation for such replacement services or any other economic damages. Letter from W. Laake to VCF (Jan. 22, 2004) (Record Extract (R.E.) 2566). Rather, explaining that Coughlin's condition was “permanent and painful,” the application averred that Coughlin sought $180,000 in compensation solely “for the personal injuries that he suffered.” Id.

The VCF initially determined that Coughlin was ineligible for compensation in part because he had not sought medical treatment within the time allowed by the Fund. On February 17, 2004, 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, Coughlin submitted additional materials, including certified medical records and a report from a physician. Thereafter, the VCF reversed itself and, on April 14, informed him that he was eligible for a “presumed award” of $60,000-which represented “zero dollars of economic loss and $60,000 of noneconomic loss.” Trial Tr. 35-36 (Mar. 16, 2009); see Letter from VCF to Coughlin (Apr. 14, 2004) (R.E. 2843). The VCF advised Coughlin that he could either accept that amount or seek an appeal hearing. On April 30, Coughlin's attorney sent the VCF a letter seeking such a hearing.

The appeal hearing took place on May 13, 2004. Coughlin's attorney told the hearing officer that Coughlin was seeking review for two reasons. 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.” Award Appeal Hr'g Tr. 6 (May 13, 2004). But the presumed award was also “an egregious error” because it “provided no compensation for economic loss to the Claimant.” Id. at 5. The attorney acknowledged that the failure to award compensation for economic loss was not the VCF's fault. As he explained: “[O]ne 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.” Id. at 6-7; see id. at 51-52 (reiteration by Coughlin's attorney that the January 22 claim application “did not include the economic loss that we presented to you today”).

In support of his appeal, Coughlin submitted ten new exhibits, nine of which addressed his economic loss. These included a letter documenting the time he had taken off from work for doctor appointments and physical therapy, which Coughlin then translated into lost salary. He also offered 32 carbon copies of checks purportedly reflecting payments to others for household services he could no longer perform himself. And he provided a six-page schedule setting out and totaling his past and future economic claims.

The VCF reached its final decision on June 1, awarding Coughlin $331,034. The award was composed of $151,034 for economic damages and the entire $180,000 he had requested for non-economic injury. See Letter from VCF to Coughlin (June 2, 2004) (R.E. 2851).

On October 31, 2008, a grand jury indicted Coughlin, 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, inter alia, 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 Coughlin's attorney had initially hand-delivered to the VCF on January 22, 2004. Count Two was for Coughlin's February 17 appeal of the VCF's initial ineligibility decision. Count Three was for the February 20 letter that enclosed certified copies of Coughlin's medical records. Count Four was for the March 9 letter that enclosed additional exhibits that Coughlin offered to support his rescue activities and physical injuries. And Count Five was for Coughlin's 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. On April 15, 2009, the district court declared a mistrial.¹

The government did not dispute that the Fifth Amendment's Double Jeopardy Clause barred it from retrying Coughlin on the charges of which the jury acquitted him. It did, however, seek to retry him on those counts as to which the jury was unable to reach a verdict. Coughlin objected, invoking a prong of double jeopardy analysis known as “issue preclusion” (also referred to as “collateral estoppel”). As the Supreme Court explained in Ashe v. Swenson, this prong 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, 90 S.Ct. 1189, 25 L.Ed.2d 469 (1970).

At the time of the April 15 mistrial, the rule in this Circuit (and several others) was that Ashe did not bar retrial in a case like Coughlin's. In United States v. White, the Circuit had held 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. 936 F.2d 1326, 1329 (D.C.Cir.1991). To conclude otherwise White said, would be to “assume that the jury acted inconsistently, reaching opposite findings on the same issue in the different counts.” Id. Adhering to White, the district court denied Coughlin's double jeopardy motion. On June 8, 2009, a new trial commenced...