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AUG 0 8 2018
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA C|erk, U_S. District and
Bankruptcy Courts
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UNITED STATES OF AMERICA )
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v. ) Criminal No. 08-CR-334 (RCL)
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CHARLES E. COUGHLIN, )
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Defendant. )
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MEMORANDUM OPINION

 

Before the Court is defendant Charles E. Coughlin’s Motion to Vacate, Set Aside, or
Correct Sentence Pursuant to 28 U.S.C. § 2255 [ECF Nos. 206 and 221], as Well as his Motion to
Expand the Record Pursuant to Rule of the Federal Rules Governing 28 US § 2255 Proceedings.
Defendant claims that his counsel Was ineffective Upon consideration of defendant’s motion [206
and 221], the Government’s opposition [241], defendant’s reply [247], the entire record herein,
and the applicable law, the defendant’s motion is DENIED.

I. BACKGROUND

A. Defendant’s Victim Compensation Fund Claim

Defendant Charles Coughlin Was Working at the Pentagon on September ll, 2001. United
States v. Coughlin, 821 F. Supp. 2d 35, 38 (D.D.C. 2011). Defendant’s desk Was located seventy-
five feet from the site of impact of the hijacked airplane that crashed into the building that day. ld.
In December 2003, Defendant submitted a claim to the September llth Victim Compensation
Fund (“VCF”), which Congress created to compensate individuals injured on September llth. Id.
He claimed that the plane’s impact caused the ceiling overhead to cave in. Id. He also stated that
he Was struck by flying debris, and hit his head while engaged in the rescue effort. Id. In his

submission to the VCF, he stated that this sequence of events caused him severe and permanent

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disabilities Id. He argued that his collection of disabilities prevented him from participating in
athletic activity, and the medical attention that they required forced him to take time off from work.
Id. He also claimed that he was unable to complete routine household chores and was forced to
pay others to complete them. Id. In his VCF claim, he included a collection often checks that were
used to compensate others for such work. Ia'. The claim, however, only sought $180,000 in
compensation for his injuries and disabilities, and no compensation for the replacement services
that he procured and other economic damages related to the injuries which he described. Id.

The VCF initially denied defendant’s claim due to its untimeliness Id. at 38-39. Defendant
appealed that determination on February 17, 2004, explaining his untimeliness and seeking a
waiver of ineligibility that was available to rescue workers. Id. at 39. Defendant submitted
additional documentation to support his appeal on February 20 and March 9, 2004, including
medical records and a physician’s report. Id. The VCF reversed its initial denial and notified the
defendant that he was eligible for a presumed award of $60,000 for noneconomic loss. Id. The
VCF notified defendant that he could either accept the presumed award or request an appeal
hearing. Id. On April 30, 2004, defendant’s attorney notified the VCF of his client’s request for an
appeal hearing. Id.

During the May 13, 2004 appeal hearing, defendant’s attorney told the hearing officer that
he requested the appeal hearing because the presumed award was “unfair and inadequate” and
“provided no compensation for economic loss” to defendant Id. (internal quotations omitted).
Defendant elaborated by stating that his initial claim lacked a past, present, and future loss of
earnings component Id. Defendant submitted ten additional exhibits to support his appeal, nine of
which centered on his economic-loss claim. Ia’. These nine exhibits included a letter detailing the

time he had taken off from work for doctor’s appointments and physical therapy; thirty two carbon

copies of checks purportedly reflecting payments to outsiders for household services that he was
no longer able to perform; and a six-part schedule detailing his past and future economic claims.
Id.

On June 1, 2004, the VCF returned its final decision, awarding defendant S331,034:
$151,034 for economic damages, as well as the $180,000 that he sought for noneconomic damages
for his injury. Ia'.

B. First Trial

On October 31, 2008, a D.C. grand jury indicted defendant on five counts of mail fraud
(one for each letter he sent to the VCF while pursuing his claim), one count of filing a false,
fictitious and fraudulent claim, and one count of theft of government property. Id.

On March 10, 2009, trial proceedings commenced against the defendant with‘ Judge
Kennedy presiding Id. During the trial, the government contested defendant’s allegation that he
was injured on September 11, 2001. ECF No. 241 at 5. In response, the defense presented the
expert testimony of Doctors Spiro Antoniades, Akhil Khanna, and Thom Mayer, all of whom
testified that defendant sustained a partial permanent disability during the attack on the Pentagon.
ECF No. 206 at 8-9; ECF No. 221 at 8. These experts testified that defendant was being treated
for a cervical spine injury following September ll, 2001. ECF No. 206 at 8-9; ECF No. 221 at 19.
Ultimately, the jury acquitted the defendant of three counts of mail fraud (Counts Two, Three, and
Five), but failed 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). Coughlin, 821 F. Supp.2d at 39.

C. Second Trial

Defendant’s retrial commenced on J urie 8, 2009, despite defendant’s objection that retrying
the hung counts was barred under the Double Jeopardy Clause, in light of Yeager v. United States.
Coughlin, 821 F. Supp.2d at 40; 557 U.S. 110 (2009). Defendant sought an interlocutory appeal
of the Court’s denial of his objection to the retrial. Coughlin, 821 F. Supp.2d at 39-40. After the
Court denied his interlocutory appeal, defendant sought an emergency stay from the D.C. Circuit,
which was granted. Id. at 40. Judge Kennedy ultimately declared a mistrial. Id.

D. D.C. Circuit Decision

On J urie 29, 2010, the D.C. Circuit reversed Judge Kennedy’s decision to allow the
government to retry defendant on the two remaining mail fraud counts, but affirmed his decision
to allow fo‘r a retrial of the false claim and theft counts Unit`ed States v. Coughlin, 610 F.3d 89
(D.C. Cir. 2010).

E. Third Trial

On February 2, 201 1, defendant’s case was reassigned by the parties’ consent to this Court.
United States v. Coughlin, 527 Fed. Appx. 3, 5 (D.C. Cir. 2013). On July 6, 2011, this Court issued
a memorandum opinion outlining evidentiary rulings for the third trial. ECF No. 141. Of most
relevance to defendant’s § 2255 motion, this Court determined that medical and athletic-activity
evidence would be admissible at defendant’s third trial. ECF No. 241 at 6. The prosecution, in its
own words, presented a “narrower scheme-to-defraud theory, conceding that defendant was
injured on 9/11 but contending that he submitted a false claim for economic damages.” Id. This
theory centered largely on the misrepresentations that defendant made to the VCF during his May
2004 appeal hearing. Ia’. Specifically, the prosecution sought to demonstrate the degree to which

defendant had exaggerated the severity of the injury that he sustained on September 11, 2001 in

order to increase his economic damages Id. at 16. Additionally, the prosecution focused on the
misrepresentations that defendant made when attempting to demonstrate the costs of replacement
services paid to outsiders as a result of his injuries Id. On August 29, 2011, the jury convicted
defendant on the false claim and theft of government property counts Coughlin, 527 Fed. Appx.
at 5. Defendant appealed his convictions arguing that this Court erred by (1) allowing for the
government to present evidence that predated his request for a VCF appeal hearing on April 30,
2004, and (2) treating evidence of medical records and athletic activity prior to April 30, 2004 as
“intrinsic.” Coughlin, 527 Fed. Appx. at 6 (internal quotations omitted). The Court of Appeals
affirmed this Court’s decision on June 14, 2013. Ia'. The Supreme Court denied his petition for a
writ of certiorari on December 6, 2013. United States v. Coughlin, 527 Fed. Appx. 3, cert. denied,
134 S. Ct. 833 (Dec. 16, 2013).

F. Post-Trial Motions

Defendant filed a Motion to Vacate under 28 U.S.C. § 2255 on December 16, 2014,
alleging that his trial counsel was constitutionally ineffective for failing to present expert medical
testimony during his third trial. ECF Nos. 204, 206. On December 18, 2014, this Court ordered
the Government to respond to defendant’s Motion to Vacate. ECF No. 207. On January 30, 2015,
the government filed a motion for extension of time to respond to defendant’s motion. ECF No.
212. Also on January 30, 2015, the government filed a motion for an order finding a waiver of
attorney-client privilege with respect to the claims of ineffective assistance of counsel raised by
defendant in his Motion to Vacate, Set Aside, or Correct Sentence. ECF No. 211. This Court
granted the government’s motion for an extension, as well as its motion for a finding of waiver of

the attorney-client privilege ECF Nos. 213, 214.

On April 4 and May 18, 2016, defendant filed, pro se, amended 28 U.S.C. § 2255 motions
alleging that his trial counsel, John Bourgeois, was constitutionally ineffective for, among several
other things, not presenting expert medical testimony at his third trial. ECF Nos. 217, 221. This
Court ultimately deemed those motions to be motions for leave to amend his prior § 2255 motions
ECF No. 226 The government opposed all of the amended issues proposed in defendant’s motions
except for his claim that his trial counsel was ineffective for not requesting CJA funds and
presenting expert medical testimony. ECF No. 227. This Court ultimately granted defendant’s
motion for leave to amend his motion only as to this same issue. ECF No. 233. On December 11,
2017, defendant filed a Motion to Expand the Record Pursuant to Rule 7 of the Federal Rules
Governing 28 USC § 2255 proceedings seeking consideration of trial transcripts from the first and
secon`d trial, as Well as an additional 311 pages of material. ECF No. 246. The government posed
no objection to the Court’s consideration of the transcripts of Doctors Antoniades, Khanna, and
Mayer, nor did it object to additional material concerning their testimony for defendant’s third
trial. ECF No. 252 at 3. It did, however, object to this Court’s consideration of any of the additional
materials not directly relevant to the central issue of defendant’s motion. Id.

II. LEGAL STANDARD

A. Section 2255 Motion

Pursuant to 28 U.S.C. § 2255, a prisoner may collaterally attack an otherwise final sentence
if it was “imposed in violation of the Constitution or laws of the United States, or that the court
was without jurisdiction to impose such sentence, or that the sentence was in excess of the
maximum authorized by law, or is otherwise subject to collateral attack. . . .” 28 U.S.C. § 2255(a).
Under such a motion, a prisoner may ask a court to vacate, set aside, or correct the sentence, Id. If

the sentence is found by the court to deny or infringe upon a prisoner’s constitutional rights such

that the judgment is “vulnerable to collateral attack, the court shall vacate and set the judgment
aside and shall discharge the prisoner or resentence him or grant a new trial or correct the sentence
as may appear appropriate.” § 2255(b). “Unless the motion and the files and records of the case
conclusively show that the prisoner is entitled to no relief,” a court shall grant a hearing. Id.

Under § 2255, the petitioner bears the burden of proof, and must demonstrate by a
preponderance of the evidence that he is entitled to relief. United States v. Pollard, 602 F. Supp.
2d 165, 168 (D.D.C. 2009). “Relief under § 2255 is an extraordinary remedy in light of society’s
legitimate interest in the finality of judgments.” United States v. Zakas, 793 F. Supp. 2d 77, 80
(D.D.C. 2011). A petitioner asserting a § 2255 motion must therefore “clear a significantly higher
hurdle than would exist on direct appeal.” United States v. Frady, 456 U.S. 152, 166 (1982).

B. Ineffective A‘ssistance of Counsel

Coughlin claims ineffective assistance of counsel as to his trial counsel_a claim he did
not raise on direct appeal. Ordinarily, claims not raised on direct appeal may riot be raised as part
of a collateral attack on the sentence unless the petitioner shows either: (1) cause for failing to raise
the issue and prejudice as a result of the alleged constitutional violation, or (2) actual innocence
Bousley v. United States, 523 U.S. 614, 622 (1998). Ineffective assistance of counsel claims,
however, are not subject to this procedural default, and petitioners asserting such claims need not
show cause and prejudice for having failed to raise the issue on direct appeal. Massaro v. United
States, 538 U.S. 500, 504 (2003).

An ineffective assistance of counsel claim is comprised of two elements: (1) “counsel’s

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performance was deficien , and (2) “the deficient performance prejudiced the defendant.”
Stricklana' v. Washington, 466 U.S. 668, 687 (1984). “Failure to make the required showing of

either deficient performance or sufficient prejudice defeats the ineffectiveness claim.” Ia'. at 700.

Deficiency of performance is established by demonstrating “that counsel made errors so
serious that counsel was not functioning as the ‘counsel’ guaranteed . . . by the Sixth Amendment.”
Id. More specifically, the defendant must show that his counsel’s performance “fell below an
objective standard of reasonableness.” Id. at 688. A court reviewing the actions of counsel at trial
must “indulge a strong presumption that the counsel’s conduct falls within the wide range of
reasonable professional assistance.” Id. at 689. The petitioner “must show that counsel’s actions
were not supported by a reasonable strategy.” Massaro, 538 U.S. at 505.

Prejudice is established by demonstrating that as a result of counsel’s errors, the petitioner
was deprived of a fair trial. Stri`ckland, 466 U.S. at 687. This requires the defendant to show that
“but for trial counsel’s error[,] there is a reasonable probability that the defendant would not have
been found guilty.” Id. at 694.

III. DISCUSSION

A. Defendant’s Motion to Expand the Record

The Court has reviewed all of the trial transcripts and extra-record materials submitted by
defendant iri relation to his Motion to Expand (ECF Nos. 247-1 to 247-10). In deciding this § 2255
motion, the Court considered only those materials relevant to Doctors Mayer, Khanna, and
Antoniades’ testimony from the first trial, as Well as those detailing the consideration of their
testimony before and during defendant’s third trial. The Court finds that all other materials are

irrelevant to its consideration of defendant’s § 2255 motion.

B. Deficiency of Counsel’s Performance

With regard to his third trial, defendant argues that trial counsel’s “failure to even consider”
expert medical witnesses to counter the government’s seven expert medical witnesses rendered his
efforts constitutionally deficient. ECF No. 206 at 28; ECF No. 221 at 38. He contends that “it was
incumbent upon [his] attorneys to prepare for another trial with complex medical issues and
complicated testimony.” ECF No. 206 at 20; ECF No. 221 at 33. In particular, he argues that
counsel’s failure to request Criminal Justice Act (“CJA”) fiands to provide for the testimony was
deficient given that he was unable to pay for the expert witnesses ECF No. 221 at 33.

However, defendant has contradicted the central premise of his motion by detailing how
defense counsel seriously considered calling Doctor Mayer as a witness in his third trial. His reply
' to the government’s opposition describes how defense counsel met for a “strategy session” shortly
before the beginning of the third trial and discussed using the three doctors from the first trial at
that session. ECF No. 247 at 9-10. Following this session, counsel included the three experts on a
list of potential witnesses for the third trial. ECF No. 247-3 at 51-55. Throughout the course of the
third trial, defendant states, counsel “maintained ongoing communication with Dr. Mayer to
deconflict his personal schedule.” ECF No. 247 at 12. Therefore, the defendant’s own pleadings
make clear that his counsel did not “[fail] to even consider” calling expert witnesses ECF No. 206
at 28; ECF No. 221 at 38.

In any event, defendant fails to demonstrate how the decision to ultimately not request CJA
funds and call the medical experts as testifying witnesses “fell below an objective standard of
reasonableness.” Sm`ckland, 466 U.S. at 688. His argument centers on the fact that defense counsel
had called medical experts to testify during his first trial, in which he was acquitted on several

counts As he states in his reply to the government’s opposition to his amended motion, “defense

[counsel] saw the effectiveness of defense expert witnesses in Trial l in obtaining acquittals.” ECF
No. 247 at 15.

In contrast to defendant’s characterization, his trial counsel John Bourgeois’ declaration
states that, after interviewing members of the jury from the first trial, he gathered that they found
the volume of medical testimony presented to be excessive, “distracting,” and “wholly
unnecessary.” ECF No. 241-1 11 6. His declaration also states that “the jurors expressed that they
were not impressed - or persuaded - by either side’s medical expert testimony. Ia'. Bourgeois also
declared that the defense team’s familiarity with the government’s medical experts would allow
them to rebut their case through cross-examination without the “side-show” of conflicting
testimony generated at the first tiial. Id. 11 11, 12. Specifically, they worried about presenting “an
inherent contradiction between having doctors testify that [defendant’s] injuries did not impair his `
ability to engage in athletic pursuits while [defendant] was, at the same time contending that he
could not perform basic household chores.” Id. 11 11.

Even if the effectiveness of the experts’ testimony was as obvious as defendant contends,
the decision to not present that testimony is not a “fundarnental” one for which he maintains the
“ultimate authority.” See Jones v. Barnes, 463 U.S. 745, 751 (1983) (providing examples of
fundamental decisions regarding a defendant’s case, such as “Whether to plead guilty, Waive a jury,
testify in his or her own behalf, or take an appeal”); ABA Standards of Criminal Justice: Defense
Functions 5.2(a)-(b). As a result, defendant had no constitutional right to compel counsel to press
for expert medical testimony, if counsel, “as a matter of professional judgment, decided not to
present those points.” Jones, 463 U.S. at 751.

Not only did counsel exercise his professional judgment by deciding not to present the

expert medical testimony, he discussed the matter with defendant after cross-examining the

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government’s medical experts and arrived at a collective decision to not call Dr. Mayer or any of
the other doctors from the first trial. ECF No. 241-1 11 13. A mid-trial e-mail correspondence
between defendant and his counsel discussing additional testimony reveals that defendant acceded
to this strategic decision. See ECF No. 252 at 18-20 (detailing a conversation between counsel and
defendant about paring down witness testimony, in which defendant refers to conceding or
“giving” Dr. Mayer).

After considering the totality of the circumstances the Court finds that counsel’s
performance “[fell] within the wide range of reasonable professional assistance” and was
therefore, not deficient. Strickland, 466 U.S. at 689.

C. Prejudice Generated by Counsel’s Performance

Given that defendant has failed to satisfy the burden of proving that counsel’s decision to
not ca11 medical experts and/or request CJA funds to facilitate their testimony rose to the level of
deficient performance the question of prejudice does not need to be addressed. Ia'. at 700.
Nevertheless the Court finds that counsel’s decision did not serve to prejudice defendant In
formulating its theory for the third trial, the government conceded that defendant did sustain an
injury on September 11, 2001, as Doctors Mayer, Antoniades, and Khanna testified during the first
trial. Given this concession, the Court does not see any way in which presenting this testimony
again would have served to undermine the government’s evidence concerning the numerous
misrepresentations defendant made during his VCF hearing concerning his economic loss See
ECF No. 241 at 16-17 (detailing the degree to which the check carbons that defendant submitted
to the VCF did not match the actual checks that passed through his bank account). The Court also
finds that defendant has failed to demonstrate that counsel’s decision to not call the medical experts

from the first trial, and instead to cross-examine the government’s medical witnesses allows for a

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“reasonable probability that the defendant would not have been found guilty” if not for that
decision. Strickland, 466 U.S. at 694.

D. Evidentiary Hearing

“A judge need not conduct an evidentiary hearing before denying a petition for relief under
§ 2255 when the ‘motion and the files and records of the case conclusively show that prisoner is
entitled to no relief.’” United States v. Morrison, 98 F.3d 619, 625 (D.C. Cir. 1996) (quoting 28
U.S.C. § 2255). The Court finds that the record conclusively show that defendant is not entitled to
relief, and therefore, will dismiss the motion without holding an evidentiary hearing.
IV. CONCLUSION

For the aforementioned reasons defendant has failed to establish that his counsel’s

performance wa‘s constitutionally deficient or prejudicial, as required for a finding of ineffective
assistance of counsel. See Strickland, 466 U.S. at 700. Defendants’ Motion to Vacate, Set Aside,
or Correct Sentence Pursuant to 28 U.S.C. § 2255 is therefore, DENIED. Defendant’s Motion to
Expand the Record is GRANTED in part and DENIED in part.

A separate order consistent with this opinion shall issue this date

Date: August 7 , 2018 ga 6'» M

Royce C. Lamberth
United States District Judge

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