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UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

_______________________________________

 )

 )

UNITED STATES OF AMERICA )

 )

v. ) Criminal Case No. 08-334 (RCL)

 )

CHARLES E. COUGHLIN, )

Defendant. )

 )

_______________________________________)

Memorandum Opinion

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 
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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 noneconomic loss. It advised Coughlin that he could either accept that amount or 
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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 

noneconomic damages for his personal injury.

b. The First Trial

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 
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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 postSeptember 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.

c. The Second Trial

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 
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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 
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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 
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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 
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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.
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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 
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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.

II. Analysis

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.
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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 
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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
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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 actually decided in the 

first proceeding.” Dowling v. United States, 493 U.S. 342, 350 (1990). 

a. Legal Standard for Motion for Reconsideration

“Although the Federal Rules do not specifically provide for motions for reconsideration 

in criminal cases, the Supreme Court has recognized . . . the utility of such motions.” United 

States v. Ferguson, 574 F. Supp. 2d 111, 113 (D.D.C. 2008); see also United States v. Dieter,

429 U.S. 6, 8 (1976) (per curiam) (noting “the wisdom of giving district courts the opportunity 

promptly to correct their own alleged errors”). Thus, this Court assumes, as it has in the past, that 

it can consider such a motion in a criminal case. See United States v. Sunia, 643 F. Supp. 2d 51, 

60 (D.D.C. 2009) (citing United States v. Booker, 613 F. Supp. 2d 32, 34 (D.D.C.2009) and 

Dieter and United States v. Healy, 376 U.S. 75, 78 (1964), as support for the notion that the 

Court can consider motions for reconsideration in criminal cases)); Ferguson, 574 F. Supp. 2d at 

113 (proceeding “on the assumption that it may consider” a motion for reconsideration in ruling 

on government's motion for reconsideration of order dismissing indictment); United States v. 

Libby, 429 F. Supp. 2d 46, 46–47 (D.D.C. 2006) (considering the merits of the government's 

motion for reconsideration of evidentiary ruling).

In Libby, Judge Walton adopted the standard of review for motions for reconsideration 

filed under Rule 59(e) of the Federal Rules of Civil Procedure as the appropriate standard for 

motions for reconsideration in criminal cases. Libby, 429 F. Supp. 2d at 46–47. Since then, other 

members of this Court have, in turn, relied upon Libby as authority for employing this standard 

of review in considering their own motions for reconsideration. See, e.g., Ferguson, 574 F. Supp.
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2d at 113 (adopting the Libby standard without comment); see also Booker, 613 F. Supp. 2d at 34 

(relying on Libby and Ferguson as authority for the use of this standard). 

In the civil context, however, “‘[t]he standard of review for interlocutory decisions differs 

from the standards applied to final judgments under Federal Rules of Civil Procedure 59(e) and 

60(b).’” Sunia, 643 F. Supp. 2d at 60 (quoting Williams v. Savage, 569 F. Supp. 2d 99, 108 

(D.D.C. 2008)). “In particular, reconsideration of an interlocutory decision is available under the 

standard, ‘as justice requires.’” Judicial Watch v. Dep’t of Army, 466 F. Supp. 2d 112, 123 

(D.D.C. 2006). As Judge Kennedy’s evidentiary rulings on January 27 are interlocutory in 

nature, and “as the Court’s apparent intention in Libby was to simply transplant into the criminal 

context the standard of review for an analogous motion for reconsideration filed in a civil case,” 

Sunia, 643 F. Supp. 2d at 60–61, the Court will analyze the pending motions for reconsideration

under the Federal Rules’ standard for reconsideration of interlocutory orders rather than the 

standard enunciated in Libby. Id. at 61.

Federal Rule of Civil Procedure 54(b) “by its terms allow[s] the trial court to modify its 

earlier [interlocutory] order.” Dellums v. Powell, 566 F.2d 231, 234 (D.C. Cir. 1977); see also

Cobell v. Norton, 355 F. Supp. 2d 531, 539 (D.D.C. 2005) (“Rule 54(b) governs reconsideration 

of orders that do not constitute final judgments in a case.”). Although this Rule provides a 

procedural mechanism for courts to reconsider their prior opinions, the actual language of Rule 

54(b) sets forth little guidance as to when such review is appropriate. To fill this gap, courts in 

this district have held that “relief upon reconsideration . . . pursuant to Rule 54(b) is available ‘as 

justice requires.’” Hoffman v. District of Columbia, 681 F. Supp. 2d 86, 90 (D.D.C. 2010) 

(quoting Childers v. Slater, 197 F.R.D. 185, 190 (D.D.C. 2000)). “[A]sking ‘what justice 

requires’ amounts to determining, within the court’s discretion, whether reconsideration is 
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necessary under the relevant circumstances.” Cobell, 355 F. Supp. 2d at 539; see also United 

States v. Second Chance Body Armor, Inc., 709 F. Supp. 2d 52, 55 (D.D.C. 2006)). The relevant 

circumstances that may warrant reconsideration include “whether the court ‘has patently 

misunderstood a party, has made a decision outside the adversarial issues presented to the court 

by the parties, has made an error not of reasoning, but of apprehension, or where a controlling or 

significant change in the law or facts [has occurred] since the submission of the issue to the 

court.’” Ficken v. Golden, 696 F. Supp. 2d 21, 35 (D.D.C. 2010) (quoting Cobell v. Norton, 224 

F.R.D. 266, 272 (D.D.C. 2004) (alterations in original); see also Hoffman, 681 F. Supp. 2d at 90 

(same); Capitol Justice, LLC v. Wachovia Corp., 605 F. Supp. 2d 187, 190 (D.D.C. 2009) 

(same).

b. The Double Jeopardy Clause of the Constitution Doesn’t Render the 

Medical and Athletic Activities Evidence Inadmissible.

The motions before the Court don’t concern the same sorts of questions considered and 

analyzed in classic issue preclusion cases like Ashe, Yeager, and Coughlin. Those cases dealt 

with whether issue preclusion foreclosed a retrial. Here, the D.C. Circuit has already given the 

green light to retrial—no one disputes that. Instead, Coughlin seeks to extend the issue 

preclusion doctrine described in Ashe and its progeny to require the exclusion of a great deal of 

relevant evidence in the upcoming retrial. But the Supreme Court rejected that very argument in 

United States v. Dowling, where it explicitly “decline[d] to extend Ashe v. Swenson and the 

Double Jeopardy Clause to exclude in all circumstances . . . relevant and probative evidence that 

is otherwise admissible under the Rules of Evidence simply because it relates to alleged criminal 

conduct for which a defendant has been acquitted.” Dowling, 493 U.S. at 348. As the Court will 

explain below, Coughlin’s request simply can’t be squared with Dowling.
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I. Dowling

The government prosecuted Dowling for armed bank robbery. Id. at 343. Witnesses had 

testified that the bank robbers had been masked. Id. at 344. The prosecutor sought to prove that 

Dowling, similarly masked and armed, had tried to rob Vena Henry’s home two weeks later and 

had been unmasked and identified in the struggle. Id. at 344–45. The problem was that prior to 

the bank robbery trial, Dowling had been tried and acquitted of the house robbery. Id. He made 

an argument virtually identical to the one Coughlin urges upon the Court here, contending that 

the use in the second trial of Henry’s testimony identifying him as the man who robbed her 

violated the Double Jeopardy Clause’s issue preclusion doctrine. Id. at 347. 

The Supreme Court held that the Double Jeopardy Clause didn’t apply to the 

government’s use of the house robbery evidence at the second trial because the relevance of 

evidence was governed by a lower standard of proof than that required for criminal conviction.

Dowling, 493 U.S. at 348–49; see also United States v. Felix, 503 U.S. 378, 386 (1992) 

(explaining that the “collateral-estoppel component of the Double Jeopardy Clause offered 

Dowling no protection despite his earlier acquittal, because the relevance of evidence offered 

under Rule 404(b) was governed by a lower standard of proof than that required for conviction”); 

id. at 387 (“Underlying our approval of the Henry evidence in Dowling is an endorsement of the 

basic, yet important, principle that the introduction of relevant evidence of particular misconduct 

in a case is not the same thing as prosecution for that conduct.”). The government had sought to 

introduce Henry’s testimony under Federal Rule of Evidence 404(b) to strengthen its 

identification of Dowling as the bank robber, which only required it to be proved as a 

likelihood—not beyond a reasonable doubt. Id. Thus, the Court concluded, “Because a jury 

might reasonably conclude that Dowling was the masked man who entered Henry’s home, even 
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if it did not believe beyond a reasonable doubt that Dowling committed the crimes charged at the 

first trial, the collateral-estoppel component of the Double Jeopardy Clause is inapposite.” Id. at 

349. 

The same reasoning applies here.

1 The government doesn’t have to prove beyond a 

reasonable doubt that Coughlin exaggerated the severity of his 9/11 injury or lied to VCF about 

his economic damages claims in order to introduce that evidence at the retrial. New Jersey v. 

T.L.O., 469 U.S. 325, 345 (1970) (holding that no intermediate fact need be proved beyond a 

reasonable doubt, so long as the crime itself is proved beyond a reasonable doubt). As will be 

discussed at length below, it’s not at all clear that the first jury rejected this evidence when it 

found that Coughlin lacked a fraudulent mail fraud scheme before May 2004. But even assuming 

it did, Dowling teaches that the Double Jeopardy Clause wouldn’t apply here because a jury 

might reasonably conclude that Coughlin exaggerated the severity of his 9/11 injury or lied to 

the VCF about his economic damages claim, even if it didn’t believe beyond a reasonable doubt

that he had a fraudulent mail fraud scheme before May. Dowling, 493 U.S. at 349; see also 

United States v. Felix, 503 U.S. 378, 386 (1992) (explaining that the “collateral-estoppel 

component of the Double Jeopardy Clause offered Dowling no protection despite his earlier 

acquittal, because the relevance of evidence offered under Rule 404(b) was governed by a lower 

standard of proof than that required for conviction”); id. at 387 (“Underlying our approval of the 

Henry evidence in Dowling is an endorsement of the basic, yet important, principle that the 

 1 The Court assumes for the moment that Coughlin’s acquittals established that there was a 

reasonable doubt regarding whether he exaggerated the severity of his injuries or lied about his 

economic damages claims before May 2004. It actually isn’t clear from the record that this 

finding formed the basis for the jury’s verdict. For that reason—as will be explained at length 

below—even if the Double Jeopardy Clause did apply to Coughlin’s claims, the evidence at 

issue would be admissible because Coughlin has failed to demonstrate that the issue he seeks to 

foreclose from relitigation was actually decided by the first jury. Dowling v. United States, 493 

U.S. 342, 350 (1990). 
18

introduction of relevant evidence of particular misconduct in a case is not the same thing as 

prosecution for that conduct.”). 

Coughlin objects to this line of reasoning, citing three cases for the proposition that 

“[c]ollateral estoppel under the Double Jeopardy clause may bar ‘acquitted conduct’ evidence.” 

Resp. Government’s Mot. Seeking Pre-trial Evidentiary Rulings 31, Mar. 25, 2011, ECF No. 136

(citing United States v. Ginyard, 511 F.3d 203, 210–11 (D.C. Cir. 2008); United States v. Day, 

591 F.2d 861, 869 (D.C. Cir. 1978); Green v. United States, 426 F.2d 661, 662 (D.C. Cir. 1970)). 

This Court’s research uncovered another case that recognizes that the Court of Appeals at one 

time “explicitly held that evidence that has been the subject of a count of which defendants have 

been acquitted in an earlier trial is inadmissible in a second trial under the doctrine of collateral 

estoppel.” United States v. Campbell, 684 F.2d 141, 153–54 (D.C. Cir. 1982) (citing Green, 426 

F.2d 661 and Day, 591 F.2d 861). Thus, Coughlin is correct that if this case had been decided in 

1970, 1978, or even 1982, the Double Jeopardy Clause—as interpreted by the D.C. Circuit—

would have at least applied to the questions at issue here. But decades have passed since then, 

and Dowling has fundamentally altered the issue preclusion landscape.

Campbell, Day, and Green were decided long before Dowling, and thus because they are 

directly contrary to the Supreme Court’s ruling in that case, this Court declines to follow them.2

Since Dowling, the D.C. Circuit has never reaffirmed the holdings of Campbell, Day, or Green

that the Double Jeopardy Clause bars the admission of acquitted conduct evidence at a second 

trial. In fact, in the two cases to discuss the application of issue preclusion to the admissibility of 

acquitted conduct evidence, the D.C. Circuit has relied on Dowling to hold that the evidence is 

 2 Ginyard was decided in 2008—long after Dowling—but it has absolutely nothing to do with 

the relevance of the issue preclusion analysis to evidence admissibility. Coughlin gave no 

explanation for his citation to Ginyard, and this Court finds it totally inapposite.
19

admissible. United States v. Davis, 235 Fed.Appx. 747, 749 (D.C. Cir. 2007) (relying on

Dowling to reaffirm that the admission of acquitted conduct evidence doesn’t violate the Double 

Jeopardy Clause) (per curiam); see also United States v. Lukens, 114 F.3d 1220, 1221 (D.C. Cir. 

1997) (relying on Dowling to hold that the district court had not run afoul of the Double 

Jeopardy Clause’s issue preclusion doctrine by admitting acquitted conduct evidence at Lukens’ 

reprosecution). These D.C. Circuit decisions finding acquitted conduct evidence admissible in 

the face of an issue preclusion objection signal a clear rejection of the contrary holdings in 

Campbell, Day, and Green.

Indeed, no other court of appeals since Dowling has held that the Double Jeopardy 

Clause’s issue preclusion doctrine bars the admission of acquitted conduct evidence. See, e.g., 

United States v. Bearden, 265 F.3d 732, 736 (8th Cir. 2001) (holding that a prior acquittal on a 

charge of conspiracy to commit mail fraud didn’t preclude the finding in a subsequent trial that 

defendant laundered proceeds of mail fraud); United States v. Collazo-Aponte, 216 F.3d 163, 199 

(1st Cir. 2000) (holding that a prior acquittal of drug conspiracy didn’t estop the government 

from introducing evidence in a subsequent prosecution for drug conspiracy and murder that 

defendant had associated with murder victims); United States v. Brackett, 113 F.3d 1396, 1400 

(5th Cir. 1997) (holding that an acquittal on a substantive charge of possession with intent to 

distribute marijuana didn’t bar admission of relevant facts in a subsequent prosecution for 

conspiracy to possess with intent to distribute); United States v. Salerno, 108 F.3d 730, 741 (7th 

Cir. 1997) (holding that a prior acquittal on RICO charge for extortion didn’t bar the introduction 

of acquitted conduct evidence at the subsequent prosecution for a continuing criminal enterprise 

because the government wasn’t required to prove that defendant ever extorted money from that 

person); United States v. Gannon, 967 F.2d 40, 45 (2d Cir. 1992) (holding that a prior acquittal 
20

of conspiracy didn’t estop the government from introducing evidence in a perjury prosecution 

even though the same evidence was admitted in the previous prosecution). Therefore, Coughlin’s 

reliance on Campbell, Day, and Green is misplaced.

1. Even if the Double Jeopardy Clause did apply here, the 

medical and athletic activities evidence would be 

admissible.

As discussed above, Dowling teaches that the Double Jeopardy Clause doesn’t apply here 

because admitting evidence of conduct into a second trial isn’t the same thing as reprosecution 

for that conduct. 493 U.S. at 349; see also Felix, 503 U.S. at 387 (“Underlying our approval of 

the Henry evidence in Dowling is an endorsement of the basic, yet important, principle that that 

the introduction of relevant evidence of particular misconduct in a case is not the same thing as 

prosecution for that conduct.”). But putting that aside and assuming for the moment that the 

Double Jeopardy Clause did apply here, close analysis makes clear that admitting this evidence 

would not amount to relitigating whether Coughlin had fraudulent intent for mail fraud purposes 

before May 2004. 

The jury could have found that Coughlin had exaggerated the severity of his 9/11 injuries 

and lied to the VCF about his economic damages before May and still found that there was 

reasonable doubt regarding whether he had fraudulent intent for mail fraud purposes. As the D.C. 

Circuit made clear, fraudulent intent for mail fraud purposes requires proof that Coughlin had a 

fraudulent scheme and intended his mailing to promote that scheme. Coughlin, 610 F.3d at 97–

98. Fraudulent intent for false claims and theft purposes, on the other hand, requires the 

government to show that Coughlin made a false claim. Id. at 101; see also 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.”). The D.C. Circuit emphasized that whether Coughlin’s 
21

mailings actually contained a false statement was irrelevant for mail fraud purposes. Id. at 98–99 

(“The law is clear that innocent mailings—ones that contain no false information—may supply 

the mailing element.”) (citations and internal quotation marks omitted). Thus, the jury could have 

thought that Coughlin lied to the VCF several times both before and after May 1; it just didn’t 

think that those lies—at the time of the charged mailings—proved beyond a reasonable doubt 

that Coughlin had a fraudulent scheme. Id. at 107 (“[The jury’s] acquittals on mail fraud counts 

relating to dates before May 13 did not necessarily mean that Coughlin had made no false 

economic submissions before that date.”). Therefore, the jury didn’t necessarily decide that he 

hadn’t lied before May, and introducing evidence that he did so wouldn’t contradict any fact that 

the first jury necessarily decided. 

Moreover, even if this Court assumes that the first jury necessarily rejected one or more 

of the government’s arguments based on the medical and athletic activities evidence, it would 

still be impossible to say with certainty which of those arguments it rejected. For instance, as 

described above, it’s possible that the jury unanimously accepted one or two of the government’s 

arguments that Coughlin lied to the VCF, and still couldn’t get unanimous consent to take the 

extra step of determining that—beyond a reasonable doubt—those lies were part of a fraudulent 

scheme. Because this Court could never know which of the government’s arguments the jury 

necessarily accepted and which it rejected, it’s impossible to know that it necessarily rejected 

any single one of the government’s arguments. Id. at 97 (“The question is what the jury 

‘necessarily’ decided.”) (quoting Yeager, 129 S.Ct. at 2366); see also id. (“[T]here is no 

collateral estoppel if a different ground ‘could’ have been a rational basis for acquittal.”) 

(quoting Ashe, 397 U.S. at 444).
22

To borrow a common metaphor, the evidence necessary to convict Coughlin can be 

likened to a brick wall. Each argument and piece of evidence the government put before the jury 

was a possible brick for the wall, and the wall was supposed to stack up beyond a reasonable 

doubt. The jury may have accepted several of those bricks, but after stacking them up, the wall 

just wasn’t high enough to meet the beyond a reasonable doubt standard. The problem is that 

juries build these walls in the black box of the jury room, and their deliberations are intentionally 

secret and largely inaccessible to outsiders. For that reason, this Court can’t know which bricks 

the jury chose to use for its wall and which it discarded as unworthy building material. 

Therefore, when the government comes back to the construction site for retrial—with the same 

load of bricks in tow—this Court can’t say with certainty that the last jury necessarily rejected 

any single one of them.

This reasoning is particularly plausible in light of the instructions the jury received 

regarding materiality. As the D.C. Circuit recognized, the jury might not have considered any of 

the economic damages evidence—whether submitted before or after May 1—in deliberating over 

the acquitted mail fraud charges because that evidence was immaterial to those charges in light 

of the fact that before May, Coughlin hadn’t made an economic damages claim. Id. at 107. Since 

much of the economic damages evidence was relevant to the mail fraud charges as well, it’s 

impossible to tell which particular contentions the jury even considered, much less which ones it 

concluded were true or false. Moreover, because a jury doesn’t need to be unanimous in its 

position on each individual piece of evidence as long as it is unanimous on its verdict regarding 

each of the elements of the crime, it’s entirely possible that there was literally no unanimity 

regarding any individual piece of evidence at issue here. Schad v. Arizona, 501 U.S. 624 at 631–

32 (1991) (“In this case as in litigation generally, ‘different jurors may be persuaded by different 
23

pieces of evidence, even when they agree upon the bottom line. Plainly there is no general 

requirement that the jury reach agreement on the preliminary factual issues which underlie the 

verdict.’”) (quoting McKoy v. North Carolina, 494 U.S. 443, 449 (1990) (Blackman, J., 

concurring)). Therefore, admitting the medical and athletic activities evidence wouldn’t violate 

the Double Jeopardy Clause even if it applied in this case.

The Supreme Court and the D.C. Circuit have both recognized the persuasiveness of this 

reasoning, holding that “it is impossible to know exactly why a jury found a defendant not guilty 

on a certain charge . . . [T]he jury cannot be said to have ‘necessarily rejected’ any facts when it 

returns a general verdict of not guilty.” United States v. Dozier, 162 F.3d 120, 125 (D.C. Cir. 

1998) (citing United States v. Watts, 519 U.S. 148 (1997)).3 In United States v. Watts, 519 U.S. 

148 (1997) (per curiam), authorities had videotaped two transactions in which a defendant named 

Putra and a codefendant sold cocaine to a government informant. Putra was charged with a twocount indictment, was convicted of count one, and was acquitted of count two. Id. at 634. At 

sentencing, however, the district court found by a preponderance of the evidence that Putra had 

indeed been involved in the crime for which he was acquitted. Id. at 635. The Court of Appeals 

 3 The Court recognizes that this language is in tension with the D.C. Circuit’s formulation of the 

issue preclusion analysis in Coughlin. It said that the analysis boiled down to two questions: 

“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?” Coughlin, 610 F.3d 

at 97. If “the jury cannot be said to have ‘necessarily rejected’ any facts when it returns a general 

verdict of not guilty,” Dozier, 162 F.3d at 125 (citing Watts, 519 U.S. 148), it’s difficult to 

imagine how a court could ever determine what facts were necessarily decided by an acquittal. 

This Court notes that in Ashe, Yeager, and other issue preclusion cases, the Supreme Court 

referred to issues the jury necessarily decided as opposed to facts. See, e.g., Yeager, 129 S.Ct. at 

2366 (“In Ashe, we squarely held that the Double Jeopardy Clause precludes the Government 

from relitigating any issue that was necessarily decided by a jury’s acquittal in a prior trial.”). 

Perhaps this technical linguistic variance contains the source of the resolution of this tension, but 

this Court’s reasoning is consistent both with the strict wording of the D.C. Circuit’s opinion in 

Coughlin and with the Supreme Court’s reasoning in Watts. Therefore, this Court has no 

occasion to address this potential tension.
24

vacated and remanded for resentencing. Id. It reasoned that the jury’s verdict of acquittal 

“manifested explicit rejection” of Putra’s involvement in the acquitted crime. Id. (citations and 

internal quotation marks omitted). Thus, “allowing an increase in Putra’s sentence would be 

effectively punishing her for an offense for which she has been acquitted.” Id. (citations and 

internal quotations marks omitted). The Supreme Court reversed this holding for several reasons, 

one of which obliterates the basis of Coughlin’s argument here:

The Court of Appeals likewise misunderstood the preclusive effect of an acquittal, 

when it asserted that a jury “‘reject[s]’” some facts when it returns a general 

verdict of not guilty. Putra, 78 F.3d, at 1389 (quoting Brady, supra, at 851). The 

Court of Appeals failed to appreciate the significance of the different standards of 

proof that govern at trial and sentencing. We have explained that “acquittal on 

criminal charges does not prove that the defendant is innocent; it merely proves 

the existence of a reasonable doubt as to his guilt.” United States v. One 

Assortment of 89 Firearms, 465 U.S. 354, 361 (1984). As then-Chief Judge 

Wallace pointed out in his dissent in Putra, it is impossible to know exactly why a 

jury found a defendant not guilty on a certain charge.

“[A]n acquittal is not a finding of any fact. An acquittal can only be an 

acknowledgement that the government failed to prove an essential element of the 

offense beyond a reasonable doubt. Without specific jury findings, no one can 

logically or realistically draw any factual finding inferences . . . .” 78 F.3d, at 

1394.

Thus, contrary to the Court of Appeals’ assertion in Brady, supra, at 851, the jury 

cannot be said to have “necessarily rejected any facts when it returns a general 

verdict of not guilty.

For these reasons, “an acquittal in a criminal case does not preclude the 

Government from relitigating an issue when it is presented in a subsequent action 

governed by a lower standard of proof.” Dowling v. United States, 493 U.S. 342, 

349 (1990). 

Watts, 519 U.S. at 155–56 (emphasis added).

The D.C. Circuit employed the same reasoning in United States v. Dozier, 162 F.3d 120 

(D.C. Cir. 1998) (Garland, J.). A jury convicted Dozier of two weapons charges and acquitted 

him of three drug-related charges. Id. at 121. At trial, a man named Shipp testified against 
25

Dozier. Id. at 122. At the sentencing stage, the United States Probation Office prepared a 

presentence Investigation Report that calculated Dozier’s sentencing range and recommended 

against a two-level decrease in the offense level for acceptance of responsibility. Id. It also 

recommended against a two-level increase in the offense level for obstructing or attempting to 

obstruct justice. Id. Dozier, naturally, opposed the increase and supported the decrease, and the 

government took the opposite position. Id. 

At the sentencing hearing, Dozier’s lawyer—arguing against the increase for obstruction 

of justice—contended that Dozier’s acquittal on the drug charges showed that the jury didn’t find 

Shipp’s testimony credible. Id. The district court, however, made the following finding: “I think 

the government is right on that point . . . [Dozier] offered to pay Shipp several thousand dollars 

to tell the police that the gun belonged to Shipp. If that is not obstruction of justice, I don’t know 

what is.” Id. at 122–23. The district court responded to defense counsel’s argument that the jury 

didn’t find Shipp credible by saying “I understand you are saying . . . the jury didn’t believe 

Shipp on that issue, but there is sufficient evidence here that that is what happened.” Id. at 123.

Dozier made several challenges to the district court’s decision to increase his sentence for 

obstruction of justice, but only one is critical to this case. He contended that the district court 

erred in crediting Shipp’s testimony regarding the attempted obstruction, since the jury’s 

acquittal of Dozier on the drug charges assertedly “demonstrated that it rejected Shipp’s 

testimony that Dozier handed him the drugs, and thus indicated that the jury did not believe 

Shipp at all. The Court, Dozier suggest[ed], should have drawn the same conclusion.” Id. at 125. 

The D.C. Circuit rejected that argument for three reasons:

First, as the Supreme Court noted in United States v. Watts, 519 U.S. 148 (1997), 

“it is impossible to know exactly why a jury found a defendant not guilty on a 
26

certain charge . . . [T]he jury cannot be said to have ‘necessarily rejected’ any 

facts when it returns a general verdict of not guilty.” Second, a jury may accept 

some parts of a witness’ testimony and reject others, see Parker v. United States, 

801 F.2d 1382, 1385–86 (D.C. Cir. 1986); even if the jury disbelieved Shipp with 

respect to ownership of the drugs, it may have believed him with respect to the 

attempted subornation. Third, even if the jury did not believe that Shipp’s 

testimony established subornation beyond a reasonable doubt (an issue never put 

to it, since subornation was not one of the charges), “‘an acquittal in a criminal 

case does not preclude the Government from relitigating an issue when it is 

presented in a subsequent action governed by a lower standard of proof.’” Watts, 

117 S.Ct. at 637 (quoting Dowling v. United States, 493 U.S. 342, 349 (1990)). 

Id.

Coughlin’s argument that this Court must construe his acquittals on the mail fraud counts 

as an affirmative finding by the jury that he never lied to the VCF or exaggerated his 9/11 injury 

before May 1, fails for the same reasons. The jury’s acquittal merely means that there was a 

reasonable doubt as to whether Coughlin had fraudulent intent for mail fraud purposes before 

May. Beyond that, this Court can’t determine anything else about what the jury necessarily 

decided. Therefore, even if the Double Jeopardy Clause applied here, the medical and athletic 

activities evidence would be admissible.

Coughlin might make two counter-arguments that the Court must consider. First, at oral 

argument before the Court of Appeals, Coughlin argued that, because the purpose of his April 30 

mailing was to request a hearing on economic as well as non-economic damages, it is unlikely 

that the jury would have decided that he had no fraudulent intent on April 30 without also 

deciding that he lacked such intent on May 13. The Court of Appeals dismissed this argument as 

follows:

It is true that, by acquitting him of mail fraud on April 30, the jury decided that 

Coughlin’s effort to obtain some compensation for economic loss was not—at that 

time—made in bad faith. But the government submitted evidence from which a 

jury could have found that thereafter he developed an intention to fraudulently 

overstate his economic losses.
27

Coughlin, 610 F.3d at 108 (first emphasis added; second emphasis in original). 

Based on that language, Coughlin argues that the government may not use any pre-May 

2004 medical and athletic activities evidence to show that he lied to the VCF or exaggerated the 

severity of his 9/11 injuries. As he puts it: “‘Some’ being less than ‘all,’ the Court’s task on 

remand is to identify the portion of the May 14, 2004 economic damage claim that Cdr. Coughlin 

had already made by April 30, 2004. In the third trial, the Government cannot collaterally attack 

the first jury’s determination that those components of the economic damage claim were 

legitimate.” Resp. Government’s Mot. Seeking Pre-trail Evidentiary Rulings 11, ECF No. 136. 

In short, because the D.C. Circuit held that “Coughlin’s effort to obtain some compensation for 

economic loss was not—at that time—made in bad faith,” Coughlin argues the jury necessarily 

found that all of his pre-May submissions were true and unexaggerated. Coughlin, 610 F.3d at 

108.

Coughlin’s interpretation of the D.C. Circuit’s opinion would render it absurd. He

contends that the Court of Appeals language quoted above means that the jury necessarily found 

that he made no false economic submission before May. Resp. Government’s Mot. Seeking Pretrial Evidentiary Rulings 11, ECF No. 136 (“[T]he Court’s task on remand is to identify the 

portion of the May 14, 2004 economic damage claim that Cdr. Coughlin had already made by 

April 30, 2004. In the third trial, the Government cannot collaterally attack the first jury’s 

determination that those components of the economic damage claim were legitimate.”). But the 

Court of Appeals expressly stated on the prior page of its opinion that the jury’s acquittals “did 

not necessarily mean that Coughlin made no false economic submissions before that date.” 

Coughlin, 610 F.3d at 107. It would defy logic for the Court of Appeals to hold that Coughlin 

could have made a false economic submission before May and at the same time hold that he 
28

necessarily hadn’t made a false economic submission before May. The D.C. Circuit didn’t 

contradict itself; Coughlin just misunderstood its opinion. Consistent with this Court’s analysis 

above, when it said that “Coughlin’s effort to obtain some compensation for economic loss was 

not—at that time—made in bad faith,” it was merely indicating that the jury found reasonable 

doubt as to whether he had a fraudulent mail fraud scheme before May.

Coughlin’s second possible counterargument attacks any reliance on the difference in the 

fraudulent intent standards of the statutes at issue here. Coughlin might argue that if this 

distinction is so important, the D.C. Circuit would have made the same argument to explain why 

retrial on Counts Six and Seven was constitutional. It’s true that the D.C. Circuit’s distinction 

was based on the possibility that the jury could have determined that Coughlin lacked fraudulent 

intent in seeking compensation for his physical injuries without also finding that he lacked 

fraudulent intent in seeking economic damages. Id. at 106 (“Although Coughlin is correct that 

‘[t]he one and only Indictment allege[d] one and only one scheme,’ that indictment alleged a 

scheme of many parts. Moreover, in alleging those parts, it drew the same kind of line that we 

draw here: the line between Coughlin’s claims for physical injuries on the one hand and for 

economic injuries on the other.”). Why then, Coughlin might ask, didn’t the D.C. Circuit base its 

decision on the difference in the fraudulent intent standards as this Court does?

The answer is that this Court and the Court of Appeals face different questions. The D.C. 

Circuit only had to decide whether retrial was constitutional. This Court picks up where it left off 

to decide what evidence the government may use in light of the D.C. Circuit’s findings. To 

decide that retrial was constitutional, the D.C. Circuit only needed to find that in acquitting 

Coughlin of mail fraud, the jury didn’t necessarily decide that he lacked fraudulent intent for 

false claims and theft. To decide whether the medical and athletic activities evidence is 
29

admissible, however, this Court must answer a much more specific question: In finding that 

Coughlin lacked fraudulent for mail fraud purposes before May 2004, did the jury necessarily 

determine that Coughlin never lied to the VCF or exaggerated the severity of his 9/11 injuries 

before May? It is this more specific question that requires a probing analysis of specifically what 

a finding of no fraudulent intent for mail fraud purposes means.

For all these reasons, this Court concludes that it would work a manifest injustice to 

allow this Court’s January 27, 2011 ruling to stand. Having reconsidered that ruling in light of 

the parties briefing and this Court’s own extensive research, the Court now holds that the Double 

Jeopardy Clause doesn’t bar the medical and athletic activities evidence at issue in this case. The 

Court proceeds to consider the parties’ many other motions and arguments.4

c. Checks Coughlin Submitted to the VCF before May 2004

In his Motion in Limine, Coughlin argues that certain checks he listed in his January 22, 

2004 submission to the VCF aren’t admissible at the upcoming retrial for precisely the same 

reason he argued that the medical and athletic activities evidence is inadmissible. Mot. Limine 8–

9, ECF No.121. The government wants to use them because although Coughlin did submit them 

with his January 22, 2004 submission, he also resubmitted them with his May 13, 2004 economic 

damages claim. The government argues that the submitted check carbons didn’t match the 

checks as deposited or that they were otherwise misleading. Mot. Limine 8, ECF No.121.

 4 At the January 27, 2011 hearing, after this Court ruled that the medical and athletic activities 

evidence was inadmissible, the government asked whether it could impeach Coughlin with that 

evidence if he took the stand. This Court asked for additional briefing on that point. In light of its 

decision to reconsider its January 27 ruling and to allow the medical and athletic activities 

evidence at retrial, however, the impeachment issue is now moot. Therefore, if Coughlin chooses 

to testify at the upcoming retrial, the government may impeach him with any evidence and in any 

manner allowed under the Federal Rules, and it may do so with the medical and athletic activities 

evidence.
30

Coughlin argues that because these checks were listed in his pre-May 2004 VCF submission, the 

jury’s acquittals indicated that it necessarily decided that the government was wrong to infer any 

fraudulent intent from the mismatched check carbons or other indications of deception related to 

those checks. Mot. Limine 8–9, ECF No. 121. Therefore, allowing the checks to be challenged in 

any way would undermine what the first jury necessarily decided.

At the January 27, 2011 hearing, Judge Kennedy ruled these checks are inadmissible 

because “the amount which is subject to litigation does not include the amount of those checks.” 

Hr’g Tr. 25, Jan. 27, 2011. The Court went on to explain, though, that the checks “can be 

challenged to the extent that what is being shown is that the checks were written for services not 

actually purchased or were a different amount,” but the government may not challenge that “such 

services were needed because Commander Coughlin could not perform them.” Id. at 31. 

Coughlin argues that Judge Kennedy was wrong to hold that the replacement-cost checks 

submitted in his January 22, 2004 mailing “can be challenged to the extent that what is being 

shown is that the checks were written for services not actually purchased or were a different 

amount.” Resp. Government’s Mot. Seeking Pre-trial Evidentiary Rulings 60, ECF No. 136 

(quoting Hr’g. Tr. 31, Jan. 27, 2011). He reiterates his argument that because these checks were 

submitted both before and after the critical April 30, 2004 date, the first jury’s finding that he 

necessarily lacked fraudulent intent before May 2004 creates a sort of double jeopardy force field 

around them, and to allow the government to attack them would “inject[ ] constitutional error 

into his third trial, giving rise to a clear possibility of a fourth trial in the event of a conviction.” 

Resp. Government’s Mot. Seeking Pre-trial Evidentiary Rulings 64, ECF No. 136 (emphasis in 

original). For the same reasons this Court rejected this argument as applied to the medical and 

athletic activities evidence, it rejects it here regarding the replacement-cost checks. The Double 
31

Jeopardy Clause doesn’t apply to this argument in light of Dowling, and even if it did apply, 

Coughlin has failed to prove that the first jury necessarily decided this issue in his favor. 

For thoroughness’ sake, this Court pauses to highlight the fact that the D.C. Circuit 

explicitly rejected this very same argument in its opinion. The Court quotes that analysis in full:

Coughlin further argues that the jury could not have distinguished the pre- and 

post-April 30 evidence in the way the government suggests. Although the 

indictment charged that on May 13 he submitted altered copies of ‘checks to 

support a claim for replacement cost of household services for his reduced 

physical abilities,’ Coughlin argues that ‘the May 13 hearing was not the first time 

that [he] made this claim.’ Rather, his January 22, 2004 application likewise listed 

such replacement services—albeit, in a lesser amount and without the supporting 

check carbons that the government maintained he subsequently altered. 

The problem with this argument is that, although the January application did state 

that Coughlin had paid for replacement services, it made clear that he was not

making a claim for such economic losses. Rather, at that time his ‘claim [wa]s for 

the personal injuries that he suffered’—for which he sought $180,000. Indeed, as 

Coughlin’s attorney later told the hearing officer, that was the case until May 13. 

Accordingly, Coughlin’s January replacement-cost submissions were not material 

to his claim at that time. And because the jury was repeatedly and correctly 

advised that only ‘material’ misrepresentations were relevant, its acquittals on 

mail fraud counts relating to dates before May 13 did not necessarily mean that 

Coughlin had made no false economic submissions before that date.

Coughlin, 610 F.3d at 107 (citations omitted). Therefore, the jury didn’t necessarily draw any 

conclusions about Coughlin’s pre-May economic damages submissions, and the replacementcost checks are fair game for the impending retrial.

d. Other Challenges to the Medical, Athletic Activities, and ReplacementCost Checks Evidence.

I. The Challenged Evidence is Admissible Under Rules 401, 402, and

403.

Coughlin argues that even if the Double Jeopardy Clause doesn’t render this evidence 

inadmissible, it is irrelevant under Rules 401 and 402 and inadmissible under Rule 403. Mot. 
32

Limine 14–18, ECF No. 121.This Court finds each of his arguments unpersuasive and, for the 

reasons explained below, concludes that the evidence at issue is admissible.

The cardinal principle of admissibility is that evidence must be relevant, meaning that it 

has “any tendency to make the existence of any fact that is of consequence to the determination 

of the action more probable or less probable than it would be without the evidence.” Fed. R. 

Evid. 401. “Evidence which is not relevant is not admissible.” Fed. R. Evid. 402. Coughlin 

points out that the government has the D.C. Circuit’s approval to retry him on the limited theory 

that “through April 2004, Coughlin sought only compensation to which he believed he was 

entitled . . ., that he had been physically injured in the attack on the Pentagon and that, through 

April, he was only seeking compensation for such physical injuries in good faith.” Coughlin, 610 

F.3d at 102 (emphasis in original). Thus, he argues, his pre-May 2004 good faith, or lack thereof, 

is no longer a variable that may be proved to be more or less probable. Mot. Limine 15, ECF No. 

121. 

The problem with Coughlin’s argument is that although it’s no longer relevant whether 

he had a fraudulent scheme for mail fraud purposes before May 2004, it is still relevant whether 

he exaggerated the severity of his 9/11 injury in order to inflate his post-May economic damages 

claim. His medical records and post-9/11 athletic activities are clearly relevant to that issue. As 

long as the government doesn’t argue that Coughlin wasn’t injured at all on 9/11, it may 

introduce evidence that he exaggerated the severity of his injuries or that he failed to disclose his 

other injuries that might have contributed to his current disability. 

Coughlin also argues that even if the evidence is relevant, it should be excluded because 

“its probative value is substantially outweighed by the danger of unfair prejudice, confusion of 
33

the issues, or misleading the jury, or by considerations of delay, waste of time, or needless 

presentation of cumulative evidence.” Fed. R. Evid. 403. Coughlin argues that “[i]f the 

Government were to attempt to introduce evidence in this third trial . . . tending to dispute Cdr. 

Coughlin’s account of what happened to him on 9/11, and what he believed concerning the 

extent of his injuries and limitations resulting therefrom, this case would break down into a trialwithin-a-trial of issues that already have been conclusively established against the Government.” 

Mot. Limine 16, ECF No. 121. He also argues that this evidence would confuse the jury because 

its role is limited to determining “whether, after April 30, 2004, Cdr. Coughlin developed and 

executed a new, narrow scheme to inflate his economic claim to the VCF. To suggest to the jury 

that it may consider and weigh alternative causes of Cdr. Coughlin’s deteriorating physical 

condition and abilities, or the extent of such deterioration, would be to lead the jury down a path 

that has been rejected by the first jury and the Court of Appeals—the path impugning Cdr. 

Coughlin’s pre-May 2004 intent.” Mot. Limine 16, ECF No. 121.

Those arguments also fail. His argument that there is a risk of creating a trial-within-atrial fails because it is premised on the already-rejected assumption that these are issues “that 

already have been conclusively established against the Government.” Mot. Limine 16, ECF No. 

121. That’s flat wrong. As was described at length above, it’s impossible to know precisely what 

the jury decided regarding the severity of Coughlin’s 9/11 injuries based solely on its 

determination that he lacked a fraudulent mail fraud scheme before May 2004. To the extent that 

this evidence increases the length of the trial, it does so only because the jury has to determine 

whether Coughlin exaggerated the extent of his 9/11 injuries in order to decide whether he made 

false economic damages claims or stole public money. This evidence is all central to that 

determination; it wasn’t necessarily decided by the first jury; and its probative value is certainly 
34

not substantially outweighed by any of the Rule 403 considerations. Coughlin’s argument that 

this evidence would confuse the jury fails for precisely the same reasons.

e. Whether evidence of the VCF’s economic award process, analysis, and 

models is inadmissible at the upcoming retrial.

Before the first trial, Coughlin moved in limine for an order prohibiting the government 

from presenting testimony from the VCF hearing officer, Glenn MacLeod, and other VCF 

officers acting in a quasi-judicial capacity, regarding their mental processes in making their 

determinations regarding his claim. See Valuation Models, Mar. 21, 2011, ECF No. 133–2. He 

cited authority that testimony from a judge, or a person acting in a quasi-judicial role, regarding 

his or her judicial decision-making is not permitted except in the exceptional circumstance where 

the officer’s testimony is the only source of the evidence in question. See, e.g., United States v. 

Frankelthal, 582 F.2d 1102, 1108 (7th Cir. 1978). 

The Court granted Coughlin’s motion but also ordered that he couldn’t seek to introduce 

into evidence matters within the VCF record concerning the methodology by which the 

economic damages awards were calculated. Coughlin wants this Court to reconsider its decision 

not to allow the VCF’s valuation models into evidence. Mot. Limine 27–29, ECF No. 121. He 

argues that because the VCF officers used these valuation models to calculate his economic 

damages and those models don’t include very many of his economic submissions, they 

demonstrate that virtually all of the evidence he submitted to the VCF was immaterial to its 

decision regarding the amount of his economic damages. Mot. Limine 28, ECF No. 121.

This Court rejects that argument because admitting the valuation tables into evidence 

would almost certainly mislead and confuse the jury. The ultimate decision regarding the amount 

of Coughlin’s economic damages award was left to the discretion of the Special Master—not to 
35

the mechanical application of a valuation model. The fact that some of the documents he used to 

calculate that number didn’t reflect Coughlin’s economic damages submissions doesn’t 

necessarily mean that the Special Master didn’t take those submissions into account in 

calculating the award. If the jury were to see the valuation model without the critical context of 

the VCF officer’s testimony to explain how those models were used to arrive at the final 

economic damages award figures, it would very likely fail to appreciate the role of the Special 

Master’s discretion in the process. Fed. R. Evid. 403. Therefore, Judge Kennedy’s rulings stand 

regarding the testimony of the VCF officers and the VCF valuation models.

Additionally, the VCF officers’ valuation tables aren’t admissible under Rule 803(8)(C), 

which permits a defendant in a criminal case to admit into evidence “factual findings resulting 

from an investigation made pursuant to authority granted by law.” The valuation tables were 

tools used to make factual findings, not the findings themselves. The Special Master made the 

only factual findings that would be admissible under Rule 803(8)(C). Therefore, the valuation 

tables are inadmissible at the upcoming retrial.

f. The VCF Claim File is admissible

The government has made clear that it doesn’t intend to offer any pre-hearing statements 

Coughlin made to the VCF into evidence, but it anticipates that Coughlin will seek to admit that 

evidence through government witnesses during his case. Government’s Supplemental Mot. 

Seeking Pre-trial Evidentiary Rulings 16, ECF No. 132. It argues that it is allowed to offer such 

evidence as admissions of a party opponent, but Coughlin may not offer them because they are 

hearsay and should be excluded under Rule 801(c). Government’s Supplemental Mot. Seeking 

Pre-trial Evidentiary Rulings 16, ECF No. 132.
36

The government also claims that this evidence is irrelevant and that even if it is relevant, 

its probative value is substantially outweighed by its tendency to unduly prejudice the 

government. Fed. R. Ev. 403. As the government puts it: “The horrific events of 9/11 are more 

than likely inscribed in the memories of all those who will be impaneled as jurors in this case. 

Allowing the defendant to repeatedly highlight those events is unfair, especially where defendant 

is seeking to preclude the government from challenging the veracity of those statements.” 

Government’s Supplemental Mot. Seeking Pre-trial Evidentiary Rulings 17, ECF No. 132.

The Court will defer ruling on the hearsay question if and until it is raised at trial because 

it depends on how Coughlin attempts to use the evidence. Coughlin is correct, however, that 

regardless of whether this evidence is inadmissible hearsay or not, he can introduce it under the 

rule of completeness. Resp. Government’s Mot. Seeking Pre-trial Evidentiary Rulings 28, ECF 

No. 136. “When a writing or recorded statement or part thereof is introduced by a party, an 

adverse party may require the introduction at that time of any other part or any other writing or 

recorded statement which ought in fairness to be considered contemporaneously with it.” Fed. R. 

Evid. 106. “The application of the rule of completeness is a matter for the trial judge’s 

discretion.” United States v. Washington, 12 F.3d 1128, 1137–38 (D.C. Cir. 1994). The Court of 

Appeals has construed Rule 106 broadly, even permitting “admission of some otherwise 

inadmissible evidence when the court finds in fairness that the proffered evidence should be 

considered contemporaneously.” United States v. Sutton, 801 F.2d 1346, 1368 (D.C. Cir. 1986). 

The government has insisted that it be allowed to reach back before May 2004 to 

highlight several other aspects of Coughlin’s claim. Coughlin, in fairness, ought to be allowed to 

put the rest of his claim file into evidence so that the jury will see everything the VCF officers 

saw when they calculated his economic damages award. The hearing officer made it clear that he 
37

reviewed Coughlin’s “entire file.” Track A Award Appeal Hr’g Tr. at VCF-2-0055, Mar. 21, 

2011, ECF No. 133–6. The jury should be able to do the same. The fact that this case involves 

the horrific events of 9/11 is an inevitable consequence of Congress’s creation of the 9/11 

Victim’s Compensation Fund. To understand the nature of Coughlin’s claim—and the full 

deplorability of his false claim and theft if it’s proven—the jury must be given the full story.

_____/s/____________________ July 6, 2011

ROYCE C. LAMBERTH Date

Chief Judge

United States District Court
38

Appendix to Memorandum Opinion

The Evidence at Issue

1. Medical Evidence

The Court assumes that the medical and athletic activities evidence the government 

intends to offer at the upcoming retrial will be all or part of the medical and athletic activities 

evidence that it offered at the first two trials. It summarizes that evidence and how the 

government will likely try to implement it at the upcoming retrial below. 

At the first trial, the government called five doctors—Drs. William Morgan, Christopher 

Zukowski, Harry Friedman, Kevin Murphy, and Robert Rosenbaum—to attack Coughlin’s 

representations to the VCF regarding his neck injury and disability resulting from the 9/11 

attacks. Trial Tr., June 11, 2009, ECF No. 115 (Morgan, Zkowski); 6/16/2009 Tr. (Zukowski, 

Friedman); 6/24/2009 Tr. (Murphy); 6/29/2009 Tr. (Rosenbaum). The government also offered 

Coughlin’s pre- and post-May 13, 2004 medical records, as well as two demonstrative videos of 

surgical procedures shown and explained to the jury by a physician. 

The government also introduced extensive evidence of Coughlin’s athletic activities—

basketball, running, and lacrosse—through Joseph Avedduti, James Schraf, and Agent Joseph 

Barlow. 6/25/2009 Tr. (Schraf); 6/29/2009 Tr. (Barlow); 6/30/2009 Tr. (Barlow); 3/19 (2009) 

(Avedduti). The government introduced this evidence to establish that Coughlin knew that he 

sustained no injury on 9/11; that his February 3, 2004 mailing to the VCF misrepresented the 

impact of the 9/11 events on his athletic activities; and to undermine his economic damages 

claims related to his inability to perform household chores as a result of 9/11. 
39

It presented evidence that at the May 13, 2004 VCF hearing, Coughlin submitted check 

carbons that didn’t match the checks as deposited or that otherwise were false or misleading. As 

part of his January 22, 2004 VCF application materials, Coughlin submitted a list of eleven 

checks for replacement costs. Ex. VCF-1-0051. The government called William Biggins, an 

employee of Home Goods, to testify regarding a $154.30 check made out to Home Goods. The

carbon of that check, as submitted to the VCF, had a notation for “Hanging Mirror & Pantry 

Shelves (Services Only).” Ex. VCF-3-0042. Coughlin had already listed that check in his January 

22, 2004 submission. Ex. VCF-1-0051. Diane Eickman of the U.S. Attorney’s Office testified to 

several other checks as well, many of which Coughlin submitted both on January 22, 2004 and at 

the May 13, 2004 hearing. Compare Ex. VCF-1-0051, with, e.g., 7/1/2009 Tr. at 21 (Ex. VCF-3-

0031), 26 (Ex. VCF-3-0032), 29 (Ex. VCF-3-0032), 31 (Ex. VCF-3-0029), 32 (Ex. VCF-3-

0027), 33–34 (Ex. VCF-3-0042), 38–39 (Ex. VCF-3-0038), 42–43 (Ex. VCF-3-0034), 51–52 

(Ex. VCF-3-0038, VCF-3-0062).

At the May 13, 2004 VCF hearing, Coughlin sought economic damages for lost wages he 

incurred or would incur to attend medical appointments relating to his neck injury and for 

replacement services for physical chores he could no longer perform as a result of this ailment. 

In support of these damages, he offered into evidence a letter signed by his employer, John 

Sayres, detailing the past and present losses. Gov’t Ex. VCF-3 at 2. In a summary exhibit he 

offered at the hearing, Coughlin stated that he used forty-two hours in 2003 and twenty-eight 

hours in 2004 of sick and vacation leave, respectively, to attend medical appointments for a total 

loss of $7,031.25. Gov’t Ex. VCF-3 at 61.

Regarding future economic losses, Coughlin estimated that he would need to see a doctor 

four times a year and a chiropractor two to three times per month. Gov’t Ex. VCF-2 at 37. In 
40

calculating the amount of loss for these appointments, Coughlin included two hours for driving 

ninety-eight miles, twenty minutes for walking back and forth from the parking lot to the medical 

office, fifteen minutes for waiting, and thirty minutes for the session. Gov’t Ex. VCF-3 at 63. In 

total, Coughlin estimated that he would incur $7,959.26 in lost earnings per year. Id. He also 

included a one-time loss of earning calculation of $25,001 for work he would miss when he 

eventually required surgery. Id. According to Coughlin, his latest MRI in April 2003 revealed an 

“increase in the severity or a decrease in the health of that area of my neck.” Gov’t Ex. VCF-2 at 

23. The examining doctor told him that he would require surgery for the condition. The doctor’s 

prediction “was very similar to the doctor that [he] had seen earlier in 2001: It’s not a question of 

if; it’s a matter of when [he would require surgery].” Id. at 23–24. Since his employer didn’t 

have a disability policy, Coughlin told the hearing officer that he would be forced to take leave 

without pay during a two-month recuperation period. Gov’t Ex. VCF-2 at 23–24; id. at 7–8. The 

employer letter confirmed that “when he elects to have surgery Mr. Coughlin will be required to 

use his company authorized time-off (benefits) to seek medical services with the difference taken 

as ‘leave without pay.’” Gov’t Ex. VCF-3 at 2. 

The government argues that Coughlin’s medical records and the testimony of several 

treating physicians contradicted his loss of earnings calculations. ECF 122 at 10. According to 

his complete Navy medical file, Coughlin attended five appointments in 2003 during which his 

neck injury was mentioned. There were none in 2004. Gov’t Ex. Medical Records 1. There was 

also no evidence in the medical records to support Coughlin’s claim that he would need surgery. 

Dr. Friedman was the only neurosurgeon who evaluated and treated Coughlin post-9/11 

and before the May 13, 2004 hearing. He testified at the second trial that he examined Coughlin 

in April 2003. Based upon Coughlin’s description of his symptoms and self-report that the 
41

medication and chiropractic treatments had reduced the pain and increased his range of motion, 

Dr. Friedman didn’t believe that “surgery was going to be . . . coming up anytime soon.” 

6/16/2009 Tr. at 124. In fact, Dr. Freidman explained to the jury that less than ten percent of the 

patients he sees with the same condition ultimately require surgery. Id. at 125. When asked if he 

ever told Coughlin that he would definitely require surgery for this condition, Dr. Friedman 

testified as follows:

Based on what I’ve written here, I don’t think I would have told him that. And I 

can’t remember, you know, that long ago all the details of our conversation, but as 

I say, given the way I wrote my note, I don’t think that would be something I 

would have said.

Id. at 133. When asked why he didn’t think he would have told Coughlin he would require 

surgery, Dr. Friedman explained that :

the hope would be that over time that he would not develop symptoms serious 

enough to require surgery. That’s not to say he might not, I mean, he could. But I 

didn’t see anything, given his history of coming and going, coming and going. I 

was hoping that that’s the way it would be. There’s no—nothing that told me for 

sure that he was absolutely going to have to have surgery.

Id. Finally, on redirect examination, Dr. Friedman denied the ability to foresee what changes 

may occur to Coughlin’s neck in the future: “there’s a good chance he could have recurrent 

symptoms. How bad they would be I have no way of knowing.” Id. at 149.

In addition to the loss of earnings component, Coughlin testified and presented exhibits to 

demonstrate that he was no longer able to perform household tasks as a result of the injuries he 

sustained on 9/11. The chores included some relatively simple tasks, such as hanging mirrors and 

Christmas lights, washing windows, spreading mulch, and cleaning the gutters. To prove his 

physical limitations, and thus increase the damages award, Coughlin described his medical 

condition to the hearing officer as follows:
42

I always have a decreased sensitivity and a numbness and the constant pain up in 

the neck area. By raising my arm and holding it in this type position for a maybe 

five minutes, I start getting an increase in numbness, to the point where it’s 

actually starting to feel asleep; and I also start getting increased tension and pain 

up in the neck area.

Gov’t Ex. VCF-2 at 21. Coughlin told the hearing officer that since 9/11, he has taken 

prescription ibuprofen (800 milligrams) three times a day to deal with this pain. Id. at 22. 

Coughlin testified that without the medication:

All the symptoms increase and I risk more going into spasmodic episodes, both in 

the neck and in the left lat area, which is all a direct result of the C5-C6 nerve 

damage or interaction in the cervical area.

Id.

The government argues, though, that his medical records before and after the May 13 

hearing contain markedly different descriptions of his medical condition. ECF 122 at 12. In 

September 2003, Coughlin described his condition as “a slight pinched nerve,” resulting in 

“slight weakness” in his left tricep and latisimus area and numbness in his left hand vicinity 

between the thumb and forefinger. Gov’t Ex. Medical Records-1 at 133; id. at 173. The 

government also points out that Coughlin didn’t see any medical physicians for his neck injury 

following the VCF May 2004 hearing until August 2007—two months after he learned that he 

was under criminal investigation for defrauding the government. Id. at 209–11.

The government also seeks to undercut Coughlin’s claims that he was dependent on 

prescription ibuprofen. ECF 122 at 12. It argues that his medical records tell a different story. 

Gov’t Ex. Medical Records-1 at 66–68 (Coughlin reported to physical therapist and chiropractor 

in February and March 2002 that he was only taking one Motrin per day). Orthopedic surgeon 

Kevin Murphy noted in the second trial that Coughlin didn’t list pain medication on the 

anesthesiology screening form prior to his September 2003 hip surgery, but he did list allergy 
43

medications. Id. at 134. According to Dr. Murphy, anesthesiologists need to know about all 

medicines a patient is taking because “the medicines that they give them during anesthesia could 

interact with medicines they’re taking at home.” 6/24/2009 Tr. at 76. The government also wants 

to use Coughlin’s medical records to show that he suffered from other, arguably more severe, 

orthopedic conditions and that Coughlin didn’t disclose those conditions to the VCF hearing 

officer. ECF 122 at 13. 

2. Post-9/11 Athletic Activities Evidence

During the May 13, 2004 hearing, Coughlin presented evidence that prior to 9/11, he was 

in optimal physical condition. In response to his attorney’s questions, Coughlin informed the 

hearing officer that, in December 1998, he started training to run marathons. VCF-2 at 20. He ran 

the B&A Trail Marathon in March 1999 in an impressive three hours eleven minutes. Id. He 

testified about running the New York City Marathon and the Boston Marathon as well—all in 

very impressive times. Id. After describing the 2000 Boston Marathon, Coughlin shifted his 

testimony to his current physical condition, indicating that his athletic activity had changed since 

9/11: “These days, one of the reasons why I’m now sitting with my arm off the armchair is that 

holding it for any period of time starts to increase the symptoms that I experience.” Id. at 20–21.

To corroborate the decline in his athletic performance, Coughlin offered a letter signed by 

Navy Chief Petty Officer William hook and his wife’s testimony. In the letter, Hook wrote that 

he saw “a remarkable difference in his ability, stamina, and strength.” VCF 3 at 1. According to 

Hook, “it is a rare occasion that [Coughlin] attempts to compete athletically and then only for 

brief periods.” Id. Sabrina Coughlin described how her husband would “always” be “out there 
44

playing basketball, lacrosse with the kids, pushing them to do better.” VCF-2 at 48. She testified 

that after 9/11, however, her husband’s playing days were “absolutely” over. Id. at 49. 

Coughlin also gave the hearing officer more detailed descriptions of his physical 

limitations, including: 

to hold anything away from my body. Straight down is not as much of a problem, 

but once there’s something that has bulk, that requires the arm to go out, it 

becomes increasingly difficult as the weight increases. And then anything that 

puts my arms over my head for longer than a minute or so, I get a lot more severe 

than even with the armrest.

VCF-2 at 34. She provided examples of activities could no longer do: helping their son move 

into his college dorm, carrying his youngest daughter up the stairs, carrying the Christmas tree 

into the house, or putting the decorating lights on the Christmas tree. Id. at 47. 

The government argues that its athletic activities evidence contradicts Coughlin’s claims 

about his limited physical abilities. ECF 122 at 14. It seeks to show that Coughlin ran the New 

York City Marathon in November 2001—less than two months after allegedly sustaining serious 

injuries at the Pentagon—successfully completing the race in three hours forty-three minutes. He 

also continued to play lacrosse. Computer evidence obtained from his work computers, including 

Coughlin’s e-mail communications and electronic calendar, and records from two lacrosse 

teams—the Navy Old Goats and the Geezers—show that he regularly played lacrosse before, 

during and after the filing of his VCF claim. Govt’t Ex. Geezers 1-13; Work Computer 12, 26, 

34, 35, 37–42. Photographs from a yearly tournament in Vail, Colorado, included several of 

Coughlin playing lacrosse for the Navy Old Goats in full gear, cradling on both his left and right 

sides. Gov’t Ex. Vail 5-13. In fact, the 2004 lacrosse tournament took place just six weeks after 

the VCF hearing. The Navy Old Goats’ score sheets list Coughlin playing in at least four games. 
45

Gov’t Ex. Vail 4. Airline reservation confirmations show that Sabrina Coughlin traveled with her 

husband to this tournament. Gov’t Ex. Work Computer 51.

The government also seeks to prove that Coughlin continued to compete on the 

basketball court after 9/11. ECF 122 at 15. His medical records contain entries for injuries he 

incurred while doing so. Medical Records 1 at 67–69 (dislocated finger on 12/19/2009); 94 

(injured left ankle in early March 2003). Coughlin’s medical records reflect that he continued to 

play basketball straight through September 2007. Medical Records 1 at 224 (habits include 

exercising regularly two to three times per week and playing basketball).