                         UNITED STATES DISTRICT COURT
                         FOR THE DISTRICT OF COLUMBIA
_____________________________________
                                       )
                                       )
UNITED STATES OF AMERICA               )
                                       )
      v.                               )     Criminal Action No. 08-334 (RCL)
                                       )
CHARLES E. COUGHLIN,                   )
      Defendant.                       )
                                       )
_____________________________________ )

                                 MEMORANDUM OPINION

        Before the Court is defendant’s Motion [159] for a new trial and Motion for a judgment

of acquittal. Upon consideration of the defendant’s Motion, the government’s response [162],

the defendant’s reply [164], the applicable law, and the entire record in this case, the Court will

deny defendant’s Motion for a new trial and Motion for a judgment of acquittal for the reasons

set forth below.

   I.      BACKGROUND

        A. Coughlin’s September 11th Victim Compensation Fund Claim

        Defendant Charles Coughlin, a United States naval officer, was working at the Pentagon

on September 11, 2001, when terrorists crashed a hijacked airplane into the building just

seventy-five feet from his desk.      In December 2003, Coughlin submitted a claim to the

September 11th Victim Compensation Fund (“VCF”), which Congress created to compensate

people who were injured in the attack. He claimed that the crash caused the ceiling over his head

to collapse, that flying debris hit him, and that he struck his head while rescuing people at the

disaster site. Coughlin’s submission to the VCF claimed that Coughlin’s 9/11 injuries caused

him severe and permanent disabilities, including neck, head, and upper back pain; restricted



                                                1
range of motion; and weakness and numbness in his left arm and hand. Coughlin said that his

injuries prevented him from playing certain sports and that his medical needs forced him to take

time off from work.     Rather than completing the household chores as he had previously,

Coughlin claimed that he had to pay others to do them and included a list of ten checks that he

had written for such replacement services.      However, his application sought $180,000 in

compensation solely for personal injuries and not for replacement services or any other economic

damages.

       The VCF initially determined that Coughlin was ineligible for compensation because he

had not sought medical treatment within the timeframe allowed by the Fund. On February 17,

2004, Coughlin appealed that determination, explaining that delay and asking for a waiver of

ineligibility that was available to rescue workers. On February 20 and March 9, he submitted

additional documentation to support his appeal, including certified medical records and a

doctor’s report. On April 14, the VCF reversed itself and informed Coughlin that he was eligible

for a presumed award of $60,000 for noneconomic loss. The VCF advised Coughlin that he

could either accept that amount or request an appeal hearing. On April 30, Coughlin’s attorney

mailed the VCF a letter requesting such a hearing.

       At the May 13, 2004 appeal hearing, Coughlin’s attorney told the hearing officer that

Coughlin sought review because the $60,000 presumed award for noneconomic loss was “unfair

and inadequate” and “provided no compensation for economic loss” to Coughlin. Coughlin’s

attorney further explained that there was a past, present, and future loss earnings component to

Coughlin’s claim that was never made initially. To support his appeal, Coughlin submitted ten

new exhibits, nine of which addressed his economic loss claim.        These included: a letter

documenting salary he lost from taking off from work for doctor appointments and physical



                                               2
therapy; thirty-two carbon copies of checks purportedly reflecting payments to others for

household chores he could no longer perform himself; and a six-page schedule setting out and

totaling his past and future economic claims.

       On June 1, 2004 the VCF rendered its final decision, awarding Coughlin $331,034:

$151,034 for economic damages and the entire $180,000 he had requested for noneconomic

damages for his personal injury.

       B. First Trial

       On October 31, 2008, a grand jury of the United States District Court for the District of

Columbia returned an indictment charging the defendant with five counts of mail fraud, one

count of filing a false, fictitious, and fraudulent claim, and one count of theft of government

property, in violation of 18 U.S.C. §§ 1341, 287, and 641, respectively.

       On March 10, 2009, a jury was sworn and trial proceedings began against the defendant

with Judge Kennedy presiding. After a month-long trial and four days of jury deliberations, the

jury acquitted the defendant of three counts of mail fraud (Counts Two, Three, and Five), but

was unable to reach a verdict on the other two mail fraud counts (Counts One and Four), the

count of filing a false, fictitious and fraudulent claim (Count Six), and the count of theft of

government property (Count Seven). Judge Kennedy ordered a mistrial as to these deadlocked

counts and scheduled the retrial for June 8, 2009.

       C. Second Trial

       The government sought to retry Coughlin on all of the hung counts, but before the second

trial was to begin the defendant filed a motion to bar retrial under the Double Jeopardy Clause.

In his motion the defendant claimed that, in acquitting him on the three mail fraud counts, the

jury necessarily made findings that barred retrial on the remaining counts. The defendant



                                                3
acknowledged that the D.C. Circuit’s holding in United States v. White, 936 F.2d 1326 (D.C. Cir.

1991), required the trial court to deny his motion, but noted that the Supreme Court had heard

oral argument in Yeager v. United States, a case that might overturn this binding precedent.

However, Judge Kennedy adhered to the rule in White—that where the same jury acquits a

defendant on some charges and cannot reach a verdict as to others, the acquittals could not have

been based on a fact upon which the hung counts depended—and denied the defendant’s double

jeopardy motion. On June 8, 2009, a new trial commenced on the two remaining mail fraud

counts, as well as on the false claim and theft counts.

        In the middle of the second trial, the Supreme Court issued its decision in Yeager v.

United States, 129 S. Ct. 2360 (June 18, 2009). Yeager expressly overruled D.C. Circuit law

with respect to the double jeopardy analysis to be applied when a jury acquits on some counts

and fails to reach verdicts on others. Relying on Yeager, the defendant renewed his motion to

bar retrial, which Judge Kennedy denied. The defendant then filed an interlocutory appeal with

the D.C. Circuit and sought a stay of the trial proceedings pending appellate review. Judge

Kennedy denied the defendant’s request, concluding that it would be inappropriate to further

delay the trial proceedings to permit the interlocutory appeal.       The defendant sought an

emergency stay from the D.C. Circuit, which was granted. Judge Kennedy eventually declared a

mistrial.

        D. D.C. Circuit Decision

        The D.C. Circuit reversed Judge Kennedy’s decision to allow the government to retry the

defendant on the two remaining mail fraud counts and affirmed his decision allowing retrial of

the false claim and theft counts. United States v. Coughlin, 610 F.3d 89 (D.C. Cir. 2010). In

accordance with its decision, the D.C. Circuit directed the trial court to dismiss counts One and



                                                 4
Four of the indictment and remanded for further proceedings. The opinion made clear that

because the jury had only acquitted defendant of pre-May 2004 mail fraud charges, the Double

Jeopardy Clause did not bar another jury from convicting Coughlin under the indictment’s

narrower scheme for false claims and theft associated with his economic damages claims, which

were all made after April 30, 2004. Id. at 110.

       However, the D.C. Circuit also held that retrial was permissible on Counts Six and Seven

because the government’s theory at trial encompassed an alternative “narrower scheme theory.”

Id. at 101–02.   To narrow the indictment to comply with the D.C. Circuit’s mandate, the

government retyped the indictment to reflect the narrower scheme that it sought to prove as to

Counts Six and Seven. This retyped indictment indicated that at retrial the government’s case

would be temporally limited to the period of May 2004 to June 2004, the charges the government

could seek to prove were related solely to the $151,034 claim for economic damages, the

government conceded that the defendant sustained injuries on 9/11, and the alleged crime no

longer included misrepresentations regarding “medical condition and physical abilities before

and after September 11, 2001.” See ECF No. 145

       E. Pretrial Rulings

       On December 1, 2010, the government filed a notice of intent to introduce evidence in

compliance with the appellate decision, in which it argued that it was not precluded from retrying

defendant for making a false claim and theft of government property to obtain past and future

economic compensation for damages he allegedly incurred as a result of the injury he sustained

on September 11, 2001. See ECF No. 122. The government specifically noted its intent to offer

defendant’s post-9/11 medical records and continued participation in strenuous athletic activities

to show that his claim for economic damages was fraudulently made. Defendant filed a motion



                                                  5
in limine, arguing that the acquittals precluded the government from presenting any evidence,

including his medical records, challenging the cause and extent of his physical condition. See

ECF No. 123. Defendant claimed that the athletic activity evidence was off limits because his

inability to run or play sports was only presented to the VCF in support of his noneconomic

award.     Since the jury had decided that he lacked fraudulent intent with respect to the

noneconomic award, the government should be precluded from offering his ability to run and

play sports post-9/11 into evidence.

         On January 27, 2011, Judge Kennedy ruled for the defendant, precluding the government

from using medical records and athletic activity evidence to prove defendant’s statements

regarding “his description of . . . his cervical injuries, severity, and debilitating effects” to the

VCF were fraudulently made. He also precluded the government from presenting any evidence

or making any argument challenging defendant’s proclaimed need for replacement services

because he was physically capable of performing the services himself.

         On February 1, 2011, defendant filed another motion in limine regarding the scope of the

government’s cross-examination of the defendant.         See ECF No. 127.       The same day, the

government filed a motion asking Judge Kennedy to reconsider his January 27, 2011 evidentiary

rulings. See ECF No. 128. On February 2, 2011, the case was reassigned by consent to Chief

Judge Lamberth. See ECF No. 129.

         On July 6, 2011, this Court issued an order granting in part and denying in part the

government’s motion for reconsideration. See ECF No. 140. This Court ruled that the Double

Jeopardy Clause does not render the medical and athletic activities evidence inadmissible, even if

the evidence was previously presented in a trial resulting in an acquittal, because “the relevance

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



                                                 6
conviction.” Id. at 16 (citing United States v. Dowling, 493 U.S. 342, 348–49 (1990)). Even

assuming that the first jury rejected this evidence when it found that Coughlin lacked a

fraudulent mail fraud scheme before May 2004, this Court explained that “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.” Id. at 17 (citing Dowling, 493 U.S. at 349; United States v. Felix,

503 U.S. 378, 386 (1992)).

       This Court went on to find that even if the Double Jeopardy Clause did apply, the

medical and athletic activities evidence would be admissible because defendant “failed to

‘demonstrate that the issue whose relitigation he seeks to foreclose was actually decided in the

first proceeding.’” Id. at 13 (quoting Dowling, 493 U.S. at 350). This Court explained that “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 21. And even if this Court

“assume[d] 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.” Id. This Court then held that the medical and

athletic activities evidence is relevant under Federal Rule of Evidence 401 and that its probative

value is not “substantially outweighed by the danger of unfair prejudice, confusion of the issues,

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

cumulative evidence.” Fed. R. Evid. 403.




                                                7
         The defendant also asked this Court to reconsider Judge Kennedy’s prior decision to

exclude the VCF’s economic award process, analysis, and models from being admitted into

evidence. This Court denied his request, citing Rule 403 for the proposition that “[i]f 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.”

ECF No. 140, at 35. This Court also stated that the VCF officers’ valuation tables are hearsay

and are not admissible under the exception set out in 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”—because “the valuation tables were tools used to make

factual findings, not the findings themselves.” ECF No. 140, at 35.

         F. Third Trial

         A third trial on the narrowed Counts Six and Seven was held before this Court beginning

on August 8, 2011. On August 29, the jury found the defendant guilty of both charges.

   II.      LEGAL STANDARDS

         A. Motion for a New Trial

         Under Rule 33 of the Federal Rules of Criminal Procedure, “[u]pon the defendant’s

motion, the court may vacate any judgment and grant a new trial if the interest of justice so

requires.” Fed. R. Crim. P. 33(a). “The determination of whether to grant a motion for a new

trial is ‘committed to the sound discretion of the trial judge, [and is subject to reversal] only for

abuse of discretion or misapplication of the law.’” United States v. Gray, 292 F. Supp. 2d 71, 76

(D.D.C. 2003) (quoting United States v. Reese, 561 F.2d 894, 902 (D.C. Cir. 1977)). The burden

of demonstrating that a new trial would be “in the interest of justice” rests with the defendant.”



                                                 8
Reese, 561 F.2d at 902. However, a new trial should be granted only if the error was not

harmless and the error affected the defendant’s substantial rights. See United States v. Walker,

899 F. Supp. 14, 15 (D.D.C. 1995) (quoting United States v. Johnson, 769 F. Supp. 389, 395–96

(D.D.C. 1991)). The inquiry is “whether the error itself had substantial influence.” Kotteakos v.

United States, 328 U.S. 750, 765 (1946). Pursuant to Federal Rule of Criminal Procedure 52(a),

harmless error—that is, “any error, defect, irregularity or variance which does not affect

substantial rights”—shall be disregarded. Fed. R. Crim. P. 52(a). “[T]he Government bears the

burden of proving harmlessness.” United States v. Palmera Pineda, 592 F.3d 199, 200 (D.C.

Cir. 2010); see Kotteakos, 328 U.S. at 760.

       B. Motion for a Judgment of Acquittal

       Under Rule 29(c) of the Federal Rules of Criminal Procedure, a defendant may renew a

motion for a judgment of acquittal after a guilty verdict has been rendered. Fed. R. Crim. P.

29(c). Judgment of acquittal is warranted “only where there is no evidence upon which a

reasonable mind might find guilt beyond a reasonable doubt.” United States v. Byfield, 928 F.2d

1163, 1165 (D.C. Cir. 1991); United States v. Hernandez, 780 F.2d 113, 120 (D.C.Cir. 1980).

The Court “must view the evidence in the light most favorable to the verdict, and must presume

that the jury properly carried out its functions of evaluating the credibility of witnesses, finding

the facts, and drawing justifiable inferences.” United States v. Campbell, 702 F.2d 262, 264

(D.C. Cir. 1983); see also United States v. Kayode, 254 F.3d 204, 212–13 (D.C. Cir. 2001). The

question for the Court is whether the evidence is sufficient for a rational juror to have found the

defendant guilty. See Kayode, 254 F.3d at 212–13; United States v. Harrington, 108 F.3d 1460,

1464 (D.C. Cir. 1997). That is, the Court may grant a motion for judgment of acquittal only




                                                 9
when “a reasonable juror must necessarily have had a reasonable doubt as to the defendant’s

guilt.” United States v. Weisz, 718 F.2d 413, 437 (D.C. Cir. 1983).

   III.      ANALYSIS

          A. Medical and Athletic Activities Evidence

                 1. Federal Rules of Evidence 401 and 403

          The defendant claims that the Court erred in admitting the medical and athletic activities

under Federal Rules of Evidence 401 and 403. Rule 401 states that evidence is relevant if 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.” “Evidence

which is not relevant is not admissible.” Fed. R. Evid. 402. After determining whether evidence

is relevant, the court must conduct a balancing test under Rule 403 to determine whether that

relevant evidence should be excluded on grounds of prejudice, confusion, or waste of time.

“Although relevant, evidence may be excluded if its probative value is substantially outweighed

by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by

considerations of undue delay, waste of time, or needless presentation of cumulative evidence.”

Fed. R. Evid. 403. The district court has broad discretion in ruling on evidentiary matters when

“weigh[ing] the extent of potential prejudice against the probative force of relevant evidence.”

Athridge v. Aetna Cas. & Sur. Co., 604 F.3d 625, 633 (D.C. Cir. 2010).

          The medical and athletic activities evidence that the government offered at trial,

including evidence regarding whether the defendant exaggerated the severity of his 9/11 injury in

order to inflate his post-May 2004 economic damages claim, was relevant to prove that

defendant filed a false VCF claim and stole government money when he sought compensation

for economic damages that he did not incur and had no reason to believe he would incur in the



                                                 10
future.    Specifically, the defendant’s medical records and the testimony of several treating

physicians were relevant to show the following regarding the defendant’s economic damages

claim: the defendant did not have medical appointments for his neck condition that required him

to take time off from work; the defendant did not need to travel to Bethesda or Walter Reed to

obtain treatment; there were many non-surgical options available to the defendant, such as

medication, physical therapy, and chiropractic manipulation, that had effectively reduced his

symptoms after each flare-up and thus indicated that his statements that he would ultimately

require surgery were fraudulently made; the defendant made fraudulent statements when he told

the VCF that the Navy neurosurgeon told him that he would definitely require surgery at some

point; the defendant’s 1998 symptoms did not go away entirely and he had additional flare-ups

prior to 9/11, which he did not disclose to the VCF; and the defendant was not suffering as badly

as he represented to the VCF, in light of his failure to undergo treatment for more than two years

and the description he provided about his symptoms and medication use prior to his hip surgery.

Moreover, evidence of the defendant’s continued participation in athletic activities was relevant

to show that despite sustaining an injury on 9/11, he could still do the household chores that he

told the VCF he could no longer perform. These linkages demonstrate that the medical and

athletic activities evidence offered by the government was relevant as a whole to the

government’s theory that the defendant exaggerated his injury to inflate his post-May 2004

economic damages claim that he made to the VCF.

          Not only was the medical and athletic activities evidence relevant under Rule 401, but the

probative value of this evidence was not “substantially outweighed by the danger of unfair

prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay,

waste of time, or needless presentation of cumulative evidence,” rendering it admissible under



                                                 11
Rule 403. Fed. R. Evid. 403. Before trial, this Court addressed—and rejected—the defendant’s

contentions that this evidence should be excluded under Rule 403 as unfairly prejudicial, and the

defendant has offered no new arguments based in the language of the Rule as to why the Court’s

prior ruling was erroneous. Instead, the defendant reads into the Rule 403 balancing test a

“necessity” requirement, arguing that under Rule 403 the probative value of the medical and

athletic activities evidence is outweighed by the fact that it is not “necessary” to the

government’s case. However, as the plain language of Rule 403 makes clear, necessity is not an

element in the Rule 403 balancing test—meaning that the Court cannot, as the defendant

requests, exclude the medical and athletic activities evidence under Rule 403 on the basis that it

was not “necessary to the charges.” 1 Def.’s Mot. at 12.

          The defendant also argues that the government placed an unfairly disproportionate focus

    on the medical and athletic activities evidence that it presented at trial. However, once this

    Court properly found the evidence relevant under Rule 401 and admissible under Rule 403, it

    was the government’s decision how to structure the case that it presented at trial. The emphasis

    placed on particular evidence at trial has no bearing whatsoever on its relevancy or

    admissibility.

                     2. Federal Rule of Evidence 404(b)

          The defendant also argues that the medical and athletic activities evidence should have

been treated as extrinsic to the charged crimes and thus analyzed under Rule 404(b) as “other

crimes, wrongs or acts.” In ruling on the defendant’s pretrial motion regarding this evidence, the

Court treated the evidence as intrinsic to the charged conduct and thus never reached a Rule



1
 The cases that the defendant cites in support of his contention that necessity is part of the Rule 403 balancing test
are inapposite here because they all relate not to the Court’s analysis under Rule 403, but to the Court’s analysis of
extrinsic evidence under Rule 404(b). See, e.g., Bradley v. United States, 433 F.2d 1113 (D.C. Cir. 1969).

                                                          12
404(b) analysis, admitting it instead under Rule 401 after conducting the balancing test for

relevance required by Rule 403.

       Federal Rule of Evidence 404(b) prohibits “evidence of other crimes, wrongs, or acts . . .

to prove the character of a person in order to show action in conformity therewith.” It permits

such evidence for purposes unrelated to the defendant’s character or propensity to commit crime,

such as “proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence

of mistake or accident.” Fed. R. Evid. 404(b). When the government plans to introduce “bad

acts” evidence, it must, upon request by the accused, give notice of the “general nature of any

such evidence.” Id. Treating evidence as “inextricably intertwined” with the charged crime—

rather than as extrinsic “evidence of other crimes, wrongs, or acts” under Rule 404(b)—“not only

bypasses Rule 404(b) and its attendant notice requirement, but also carries the implicit finding

that the evidence is admissible for all purposes notwithstanding its bearing on character, thus

eliminating the defense’s entitlement, upon request, to a jury instruction.” United States v.

Bowie, 232 F.3d 923, 928 (D.C. Cir. 2000).

       The defendant argues that the Court should have treated the medical and athletic

activities evidence as extrinsic evidence under Rule 404(b), thus entitling the defendant to ask

the Court to instruct the jury that it could only use the evidence for particular purposes. But

contrary to defendant’s assertions, this Court properly treated the medical and athletic activities

evidence as intrinsic to the charged crimes, rendering Rule 404(b) inapplicable. Rule 404(b) bars

extrinsic evidence only when the evidence is offered solely to “prove the character of a person in

order to show action in conformity therewith.” Fed. R. Evid. 404(b). “Evidence that constitutes

the very crime being prosecuted is not of that sort.” Bowie, 232 F.3d 923. The medical and

athletic activities evidence does not consist of prior “bad acts” that the government offered to



                                                13
demonstrate the defendant’s propensity to commit the charged crimes. Rather, this evidence is

inextricably intertwined with the very acts that the defendant committed when he engaged in the

behavior that constituted the charged crimes. This Court therefore properly treated the evidence

as intrinsic rather than extrinsic, disposing of the need for the Court to have engaged in a 404(b)

analysis.

       Defendant simultaneously argues that the Court should have excluded the medical and

athletic activities evidence altogether under Rule 404(b). Yet, “Rule 404(b) is a rule of inclusion

rather than exclusion.” Bowie, 232 F.3d at 929. Rule 404(b) functions as a mechanism for the

admission of character evidence for particular purposes, not as a mechanism to exclude evidence.

If the Court had admitted the medical and athletic activities evidence for a limited purpose under

Rule 404(b), the proper course of conduct would be for the defendant to ask the Court to exclude

the evidence under Rule 403. The defendant cannot, however, ask the Court to use Rule 404(b)

as a means to exclude evidence altogether unless the government had offered evidence of other

crimes, wrongs, or acts “to prove the character of [the defendant] in order to show action in

conformity therewith,” which it did not. Fed. R. Evid. 404(b).

               3. Double Jeopardy

       The defendant challenges this Court’s prior determination that the Double Jeopardy

Clause did not preclude the government from introducing the medical and athletic activities

evidence at the third trial. However, as he offers no new arguments to persuade the Court to

reconsider this ruling, the Court finds that its prior decision stands.

       B. Testimony Regarding Defendant’s 9/11 Injury

       Under the narrowed indictment, at retrial the government was permitted to challenge the

extent of the defendant’s 9/11 injuries, but was prohibited from arguing that the defendant was



                                                 14
not injured at all on 9/11. See ECF No. 141, at 32. At retrial, the government called Elizabeth

Cantwell to the stand to establish that the defendant’s 9/11 injuries were not as severe as he

represented at the May 2004 VCF hearing. Ms. Cantwell testified that the lightweight ceiling

tiles in the portion of the Pentagon where the defendant worked did not fall and that neither the

items on her desk nor the television on her windowsill fell at the time of impact. After the

government elicited this testimony, the defendant objected and moved for a mistrial, which this

Court overruled. The defendant now argues that the Court should have granted a mistrial when

the government introduced this evidence, which the defendant says was unfairly prejudicial.

However, on re-direct examination Ms. Cantwell said that she had seen the defendant with a

band-aid on his head, indicating that he was injured. This demonstrates that the government was

not impermissibly challenging whether the defendant was injured at all on 9/11, but rather

eliciting this testimony to support its argument that the defendant was not hurt as badly as he

later portrayed to the VCF. Although the distinction between challenging the fact of injury and

the extent of injury is a fine one, it is not an impossible one to make. The government’s

questioning of Ms. Cantwell was properly tailored to challenge the extent of the defendant’s

injury in 9/11, and therefore the Court’s denial of the defendant’s motion for a mistrial was

proper.

          The defendant also maintains that the government improperly cross-examined Admiral

Route at trial regarding the defendant’s Purple Heart award, and that the Court improperly

overruled the defendant’s objection at trial to this testimony. However, the government’s cross-

examination was merely aimed at questioning the extent of Admiral Route’s personal knowledge

of the events in question and of the defendant’s nomination for a Purple Heart. During that line

of questioning the government did not suggest that the defendant was not hurt, but instead sought



                                               15
to establish that the Purple Heart is not only awarded to individuals who are severely injured in

an act of war, but could be awarded to a person with even a minor injury. This line of

questioning is consistent with the limitation that the government could only challenge the extent

of the defendant’s 9/11 injury and not the fact of it, and therefore did not constitute error.

         C. VCF Economic Award Process Evidence

         The defendant also maintains that this Court erred by declining to admit evidence of the

VCF economic award process under Federal Rule of Evidence 803(8)(C), which creates a

hearsay exception to permit a defendant in a criminal case to admit into evidence “factual

findings resulting from an investigation made pursuant to authority granted by law.” This Court

held before retrial that “[t]he valuation tables were tools used to make factual findings, not the

findings themselves,” and declined to reconsider Judge Kennedy’s prior decision to exclude the

valuation tables under Rule 403 because of the risk they pose of misleading and confusing the

jury. See ECF No. 140, at 34–35.

         The defendant provides the Court with no persuasive reason to yet again reconsider these

findings. And even if the Court were to find the evidence admissible under Rule 803(8)(C), it

would still be within the Court’s discretion to exclude the evidence under Rule 403 as confusing

and misleading. The Court therefore finds that it did not err in excluding the VCF economic

award valuation evidence.

   IV.      CONCLUSION

         As the Court finds that no error occurred, it is not necessary to reach the question of

whether the defendant’s rights were substantially affected.       Moreover, although the defendant

has captioned his motion as a motion for a judgment of acquittal, he has made no insufficiency of

the evidence arguments. As set forth above, there was an abundance of evidence upon which a



                                                  16
reasonable jury could find guilt beyond a reasonable doubt of each of the charges. For the

foregoing reasons, the Court will deny defendant’s Motion for a new trial and Motion for a

judgment of acquittal.



       Signed by Royce C. Lamberth, Chief Judge, on November 7, 2011.




                                           17
