United States v. Coughlin

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued November 6, 2009 Decided June 29, 2010

No. 09-3062

UNITED STATES OF AMERICA,
APPELLEE

v.

CHARLES E. COUGHLIN,
APPELLANT

Consolidated with 09-3063

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

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

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

Before: TATEL, GARLAND, and KAVANAUGH, Circuit
Judges.
 2

Opinion for the Court filed by Circuit Judge GARLAND.

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

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

I

Coughlin, an officer in the United States Navy, was
working in the Pentagon when terrorists crashed a hijacked
plane into the building on September 11, 2001. In December
2003, Coughlin submitted (by fax and subsequent hand-
delivery) a claim to the September 11th Victim Compensation
Fund (VCF), which Congress created to compensate people who
were injured in the attacks of that day. Coughlin’s papers
averred that the plane struck the Pentagon seventy-five feet from
 3

where he was working and caused the ceiling over his desk to
collapse. He stated that he was hit by flying debris and that he
struck his head while participating in rescue efforts in a smoke-
filled area.

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

The VCF initially determined that Coughlin was ineligible
for compensation, in part because he had not sought medical
treatment within the time allowed by the Fund. On February 17,
2004, Coughlin appealed that determination, explaining the
delay and asking for a waiver of ineligibility that was available
to rescue workers. On February 20 and March 9, Coughlin
submitted additional materials, including certified medical
 4

records and a report from a physician. Thereafter, the VCF
reversed itself and, on April 14, informed him that he was
eligible for a “presumed award” of $60,000 -- which represented
“zero dollars of economic loss and $60,000 of noneconomic
loss.” Trial Tr. 35-36 (Mar. 16, 2009); see Letter from VCF to
Coughlin (Apr. 14, 2004) (R.E. 2843). The VCF advised
Coughlin that he could either accept that amount or seek an
appeal hearing. On April 30, Coughlin’s attorney sent the VCF
a letter seeking such a hearing.

The appeal hearing took place on May 13, 2004.
Coughlin’s attorney told the hearing officer that Coughlin was
seeking review for two reasons. The $60,000 presumed award
for non-economic loss was, he said, “unfair and inadequate and
in and of itself would give rise to a request for review.” Award
Appeal Hr’g Tr. 6 (May 13, 2004). But the presumed award was
also “an egregious error” because it “provided no compensation
for economic loss to the Claimant.” Id. at 5. The attorney
acknowledged that the failure to award compensation for
economic loss was not the VCF’s fault. As he explained:
“[O]ne of the things that we didn’t spell out in the initial claim
and that the claim evaluator really didn’t have before him -- and
it was an oversight on my part . . . -- was the fact that there was
a past, present, and future loss of earnings component to this
claim, which was never even made initially.” Id. at 6-7; see id.
at 51-52 (reiteration by Coughlin’s attorney that the January 22
claim application “did not include the economic loss that we
presented to you today”).

In support of his appeal, Coughlin submitted ten new
exhibits, nine of which addressed his economic loss. These
included a letter documenting the time he had taken off from
work for doctor appointments and physical therapy, which
Coughlin then translated into lost salary. He also offered 32
carbon copies of checks purportedly reflecting payments to
 5

others for household services he could no longer perform
himself. And he provided a six-page schedule setting out and
totaling his past and future economic claims.

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

On October 31, 2008, a grand jury indicted Coughlin,
charging that, “[f]rom in or about December 2003, and
continuing until in or about June 2004,” he “willfully and
knowingly devised, and intended to devise, a scheme and
artifice to defraud the VCF and to obtain money by means of
false and fraudulent pretenses and representations.” Indictment
¶ 6. The indictment alleged, inter alia, that Coughlin submitted
false and misleading information about his pre- and post-
September 11 medical condition and about his loss of earnings.

The indictment contained five counts of mail fraud in
violation of 18 U.S.C. § 1341 -- one for each letter that Coughlin
sent or caused to be sent to the VCF while pursuing his claim.
Count One was for the February 3, 2004 version of the cover
letter that Coughlin’s attorney had initially hand-delivered to the
VCF on January 22, 2004. Count Two was for Coughlin’s
February 17 appeal of the VCF’s initial ineligibility decision.
Count Three was for the February 20 letter that enclosed
certified copies of Coughlin’s medical records. Count Four was
for the March 9 letter that enclosed additional exhibits that
Coughlin offered to support his rescue activities and physical
injuries. And Count Five was for Coughlin’s April 30 request
for an appeal hearing regarding the amount of the VCF award.
 6

The indictment also included two non-mail-fraud counts.
Count Six charged Coughlin with making a false and fraudulent
claim in violation of 18 U.S.C. § 287. And Count Seven
charged him with theft of public money in violation of 18 U.S.C.
§ 641.

After a month-long trial, a jury acquitted Coughlin on three
of the five mail fraud charges -- Counts Two, Three, and Five.
It was unable to reach a verdict on the other four counts. On
April 15, 2009, the district court declared a mistrial.1

The government did not dispute that the Fifth Amendment’s
Double Jeopardy Clause barred it from retrying Coughlin on the
charges of which the jury acquitted him. It did, however, seek
to retry him on those counts as to which the jury was unable to
reach a verdict. Coughlin objected, invoking a prong of double
jeopardy analysis known as “issue preclusion” (also referred to
as “collateral estoppel”). As the Supreme Court explained in
Ashe v. Swenson, this prong bars the government from
prosecuting a defendant on a charge that depends on facts that
a previous acquittal on a different charge necessarily decided in
the defendant’s favor. 397 U.S. 436, 443-44 (1970).

At the time of the April 15 mistrial, the rule in this Circuit
(and several others) was that Ashe did not bar retrial in a case
like Coughlin’s. In United States v. White, the Circuit had held
that, where the same jury acquits a defendant on some charges
and cannot reach a verdict as to others, the acquittals could not
have been based on a fact upon which the hung counts
depended. 936 F.2d 1326, 1329 (D.C. Cir. 1991). To conclude
otherwise, White said, would be to “assume that the jury acted

1
Coughlin’s wife had also been a defendant in the trial, charged
only with the count of theft of public money (Count Seven). After the
jury hung on that count, the government opted not to retry her.
 7

inconsistently, reaching opposite findings on the same issue in
the different counts.” Id. Adhering to White, the district court
denied Coughlin’s double jeopardy motion. On June 8, 2009, a
new trial commenced on the two remaining mail fraud counts,
as well as on the false claim and theft counts.

On June 18, in the midst of the second trial, the Supreme
Court decided Yeager v. United States, 129 S. Ct. 2360 (2009).
Yeager expressly overruled the decisions of those circuits,
including our own, 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, the district court denied Coughlin’s motion, concluding
that, although his argument regarding the two mail fraud counts
was not “frivolous in the legal sense of that word, i.e. lacking a
legal basis or legal merit,” it failed to satisfy the Yeager test.
Order at 3, United States v. Coughlin, No. 08-334 (D.D.C. June
30, 2009). As for the false claim and theft counts, the court said,
Coughlin’s double jeopardy argument simply “lack[ed] legal
merit.” Id. at 4.

Coughlin then filed this appeal and an emergency motion to
stay the ongoing retrial. Although the appeal is interlocutory,
we have jurisdiction because denials of double jeopardy motions
fall within the collateral-order exception to the usual rule barring
review of non-final judgments. Abney v. United States, 431 U.S.
651, 657-59 (1977); United States v. Ginyard, 511 F.3d 203, 208
(D.C. Cir. 2008). A special panel of this court stayed the trial
pending the appeal. The panel found the stay warranted in light
 8

of the “unusual circumstances presented” by Yeager’s mid-trial
reversal of Circuit precedent, and in light of the district court’s
determination that Coughlin’s double jeopardy claim was not
frivolous, at least as to the mail fraud counts. Order at 1-2,
United States v. Coughlin, No. 09-3062 (D.C. Cir. July 8, 2009).

II

We review de novo the district court’s determination that
issue preclusion does not bar Coughlin’s retrial. See United
States v. TDC Mgmt. Corp., 24 F.3d 292, 295 (D.C. Cir. 1994).
In this part, we set forth the principles of issue preclusion. In
Part III we apply them to the two mail fraud counts as to which
the jury failed to reach a verdict, and in Part IV we apply them
to the false claim and theft counts upon which the jury also
hung.

In addition to barring retrial of a charge upon which a
defendant was acquitted, Yeager, 129 S. Ct. at 2365-66, “the
Double Jeopardy Clause precludes the Government from
relitigating any issue that was necessarily decided by a jury’s
acquittal in a prior trial,” id. at 2366. “To decipher what a jury
has necessarily decided,” 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 grounded its verdict
upon an issue other than that which the defendant seeks to
foreclose from consideration.’” Id. at 2367 (quoting Ashe, 397
U.S. at 444). This “inquiry ‘must be set in a practical frame and
viewed with an eye to all the circumstances of the
proceedings.’” Id. (quoting Ashe, 397 U.S. at 444).

Yeager also instructed how, in determining what the jury
decided on the acquitted charges, we should account for the fact
that the jury was unable to reach a verdict on other charges. The
 9

answer? Not at all. “[T]he jury’s inability to reach a verdict,”
the Court held, is “a nonevent.” Id. “Because a jury speaks only
through its verdict, its failure to reach a verdict cannot -- by
negative implication -- yield a piece of information that helps
put together the trial puzzle.” Id. Thus, in our analysis of why
the jury acquitted Coughlin on three of the mail fraud counts, we
must not “conjecture about possible reasons for [the] jury’s
failure to reach a decision” on the other two mail fraud counts
or on the false claim and theft counts. Id. at 2368. And, if we
determine that an issue necessarily decided in Coughlin’s favor
on the acquitted counts is an “essential element” of a hung
count, we must bar retrial on that count notwithstanding the
jury’s failure to reach a verdict. Id. at 2369.

A few more points are worth emphasizing. The Court has
directed that our analysis of what the jury decided should be
conducted with “realism and rationality,” Ashe, 397 U.S. at 444,
and that we should not presume “that the jury may have
disbelieved substantial and uncontradicted evidence of the
prosecution on a point the defendant did not contest,” id. at 444
n.9 (internal quotation marks omitted). At the same time, if
multiple potential reasons for acquittal are evident in the record
of the trial, we will not presume that the jury acquitted on the
ground most favorable to the defendant. The question is what
the jury “necessarily” decided, Yeager, 129 S. Ct. at 2366; there
is no collateral estoppel if a different ground “could” have been
a rational basis for acquittal, Ashe, 397 U.S. at 444. Finally,
“the burden [is] on the defendant to demonstrate that the issue
whose relitigation he seeks to foreclose was [necessarily]
decided in the first proceeding.” Dowling v. United States, 493
U.S. 342, 350-51 (1990); see Yeager, 129 S. Ct. at 2368 n.6.
 10

III

The indictment in this case charged that, “[f]rom in or about
December 2003, and continuing until in or about June 2004,”
Coughlin willfully and knowingly devised a scheme to defraud
the VCF and to obtain money by means of false and fraudulent
pretenses and representations. Indictment ¶ 6. It further
charged that, “for the purposes of executing and attempting to
execute” this scheme, Coughlin caused to be delivered by the
U.S. Postal Service or Federal Express five pieces of mail,
which formed the bases for the five mail fraud counts. Id. ¶ 19.
The five mailings were: a February 3, 2004 version of the cover
letter that Coughlin’s attorney had first sent to the VCF the
previous month (Count One); Coughlin’s February 17 appeal of
the VCF’s initial decision that he was ineligible for
compensation (Count Two); a February 20 letter to the VCF that
enclosed certified copies of Coughlin’s medical records (Count
Three); a March 9 letter that enclosed additional exhibits that
Coughlin intended to present (Count Four); and Coughlin’s
April 30 request for a hearing on the amount of the VCF’s award
(Count Five).

As noted above, the jury acquitted Coughlin on Counts
Two, Three, and Five. The question we consider here is
whether, in so doing, the jury necessarily decided facts in
Coughlin’s favor that constitute an essential element of the
remaining mail fraud counts, Counts One and Four. If so, the
Double Jeopardy Clause would preclude their reprosecution.
This question has 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?
 11

A

To prove mail fraud, the government must show: “‘(1) a
scheme to defraud, and (2) the mailing of a letter, etc., for the
purpose of executing the scheme.’” United States v. Reid, 533
F.2d 1255, 1264 (D.C. Cir. 1976) (quoting Pereira v. United
States, 347 U.S. 1, 8 (1954)); see Carter v. United States, 530
U.S. 255, 261 (2000).2 To commit the offense, the defendant
must have fraudulent intent at the time of the charged mailing:
that is, he must both have a fraudulent scheme in mind and
intend that the mailing further that scheme. See 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” (emphasis added)); see also Schmuck
v. United States, 489 U.S. 705, 715 (1989) (stating that the
“relevant question . . . is whether the mailing is part of the
execution of the scheme as conceived by the perpetrator at the
time” of the mailing (emphasis added)). The mailing, however,
may be “innocent in and of itself” and “need not be an essential
element of the scheme.” Schmuck, 489 U.S. at 710-11. “It is
sufficient for the mailing to be incident to an essential part of the
scheme . . . .” Id. (internal quotation marks omitted).

Coughlin’s defense at trial was that he lacked fraudulent
intent because he had always acted in good faith. As his
attorney emphasized in closing argument, “the key element[]”
of the charges against him was “intent to defraud.” Trial Tr. 79
(Apr. 7, 2009). The district court advised the jury that Coughlin

2
See 18 U.S.C. § 1341 (providing that the offense is committed
by “[w]hoever, having devised or intending to devise any scheme or
artifice to defraud, . . . for the purpose of executing such scheme or
artifice . . . knowingly causes to be delivered” by the Postal Service or
a commercial interstate carrier any “matter or thing”).
 12

asserted he had “acted in good faith,” and instructed that “[i]f
the evidence in this case leaves the jury with a reasonable doubt
as to whether [Coughlin] acted in good faith, the jury must
acquit him.” Trial Tr. 86-87 (Apr. 8, 2009). Based on the
record before us, we conclude 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.

1. In opposing Coughlin’s double jeopardy motion in the
district court, the government contended that the jury might have
acquitted Coughlin not because it thought he had no “scheme to
defraud” in mind, but rather because it thought the three
“particular mailings” referenced in Counts Two, Three and Five
“were not in furtherance thereof.” Gov’t’s Opp’n to Def.’s
Renewed Mot. to Bar Re-Trial at 4 (June 24, 2009)
(underscoring in original). The jury could have thought this, the
government argued, because it could have viewed the three
mailings as merely “procedural” communications that contained
no misrepresentations. Id. at 4 & n.1. The mailing at issue in
Count Five, for example, was simply a form on which Coughlin
had checked a box indicating that he wanted a hearing on the
amount of his award.

The jury may well have thought there were no
misrepresentations in any of the three mailings at issue. But
even if it did, it could not have acquitted Coughlin on that basis.
The law is clear that “innocent mailings -- ones that contain no
false information -- may supply the mailing element.” Schmuck,
489 U.S. at 715 (internal quotation marks omitted). It is also
clear that “the elements of mail fraud [may] be satisfied where
the mailings [are] routine,” id. -- or, to use the government’s
adjective, “procedural.” As the district court instructed the jury:
“It is not necessary for the Government to prove that the items
mailed . . . contained any false or fraudulent statement . . . or
 13

contain[ed] any request for money . . . . The government must
prove . . . , however, that the use of the mails . . . further[ed] or
advanced or carried out in some way the scheme.” Trial Tr. 81
(Apr. 8, 2009).3 The government itself emphasized this point.
There is “no requirement that the items that actually get mailed
be false,” the prosecutor said in closing argument. “All the
documents that got mailed could be perfectly true, as long as
they were used as part of a scheme to defraud.” Trial Tr. 11
(Apr. 7, 2009). Accordingly, the prosecutor assured the jury,
“this won’t be a big issue for you, because . . . [a]ll the
government has to prove is that things were mailed to the VCF,
and they were mailed for the purpose of advancing the scheme.”
Id.

Given the court’s instructions and the government’s
arguments, “a rational jury could [not] have grounded its
verdict,” Yeager, 129 S. Ct. at 2367 (quoting Ashe, 397 U.S. at
444), on the conclusion that the mailings were not sent in
furtherance of the fraudulent scheme -- if such a scheme existed
at the time of each mailing. If the jury believed Coughlin had a
fraudulent scheme in mind on February 17, 2004, the date of the
letter referenced in Count Two, it could not have doubted that
the letter furthered that scheme. The February 17 letter enclosed
a form appealing the VCF’s initial determination that Coughlin
was ineligible for compensation; without the letter, the alleged
scheme to defraud the VCF of money could not have continued.
See Letter from VCF to Coughlin (Feb. 3, 2004) (R.E. 2831)
(explaining that, to appeal the ineligibility determination,
Coughlin must mail the appeal form to the VCF). Similarly, the

3
This instruction was slightly imprecise. The mailing need not
actually further the scheme. So long as it was mailed “for the purpose
of executing a fraudulent scheme,” a mailing satisfies the statute even
if “later, through hindsight,” it “may prove to have been
counterproductive.” Schmuck, 489 U.S. at 715.
 14

February 20 letter -- referenced in Count Three -- furthered the
alleged scheme because it contained certified copies of medical
records, a prerequisite for compensation under VCF regulations.
See Trial Tr. 192 (Mar. 11, 2009). And the same is true of the
April 30 letter referenced in Count Five. If Coughlin had a
fraudulent scheme in mind on that date, the letter furthered it
because it sought a hearing at which he could argue for
increased compensation; without the mailing, he could have
collected no more than the $60,000 already awarded.

In short, all of these mailings would have furthered a
fraudulent scheme -- if there were one -- and it would not have
been rational for the jury to have thought otherwise or to have
believed Coughlin thought otherwise. Accordingly, the
government’s argument does not support the conclusion that the
jury acquitted Coughlin without determining that he did not
have a fraudulent scheme in mind at the relevant times.

2. On appeal, the government offers a slightly different, but
still unpersuasive, theory for why the jury might have acquitted
Coughlin of three counts of mail fraud yet still believed that he
had a fraudulent scheme at the time of each of the three
mailings. The government argues that, while it may have
satisfied the jury that Coughlin had a “scheme or artifice to
defraud” at all relevant times, it may have failed to prove that he
made those three mailings “for the purpose of executing” that
scheme. 18 U.S.C. § 1341. To fill out this theory, the
government suggests that the jury could have found that
Coughlin’s VCF claim was only partially fraudulent, that is, he
“may have been entitled to some compensation but . . . lied
about certain specific aspects of his request for compensation,”
such as the extent of his injuries. Appellee’s Br. 44. The
acquitted mailings, the government maintains, “could have been
viewed by the jury as possibly directed at an entirely legitimate
effort to obtain some compensation, rather than as an intentional
 15

and bad-faith effort to go beyond that to obtain compensation to
which appellant was not entitled.” Id.

As we discuss in Part IV, we agree with the government’s
premise that the jury may have thought the scheme was
“narrower than the government alleged.” Id. at 51. That is,
Coughlin may have intended to defraud the government with
respect to certain aspects of his request for compensation, but
had good faith with respect to others. But we do not think that
a rational jury could have believed both that Coughlin had a
fraudulent scheme in mind on the date of a particular mailing,
and that he nonetheless intended that mailing to further only a
legitimate purpose.

For example, if the jury believed Coughlin had in mind a
scheme to defraud the VCF of even a small amount of money on
the date of the letter referenced in Count Two, it could not have
doubted that the letter -- which was necessary to render
Coughlin eligible for any money at all -- was mailed “for the
purpose” of advancing that scheme. Not surprisingly, neither
Coughlin nor the government suggested otherwise at trial, and
the jury would have had no reason to believe it could have
acquitted on that ground. The same is true of the letters
underlying Counts Three and Five, both of which plainly would
have furthered the alleged scheme. See supra Part III.A.1.

In sum, the government has offered no valid reason to
attribute the three acquittals to anything other than a finding that
Coughlin lacked fraudulent intent -- i.e., that he neither had a
fraudulent scheme in mind nor intended the mailings to advance
such a scheme -- at the times referenced in those counts. As we
cannot identify such a reason either, we conclude that the jury
necessarily found Coughlin lacked fraudulent intent when he
mailed the letters at issue in Counts Two, Three, and Five.
 16

B

The remaining question in this Part is 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. We conclude that it
does.

Count One charged that, on February 3, 2004, “for the
purposes of executing and attempting to execute” his alleged
fraudulent scheme, Coughlin mailed the VCF a version of his
initial cover letter seeking compensation. Indictment ¶ 19.
Count Four charged that, on March 9, he mailed certain exhibits
to the VCF for the same purposes. But if Coughlin had no
fraudulent scheme in mind 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 government did not proffer at trial -- and
does not suggest on appeal -- any evidence or theory to support
the proposition 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 Four),
and abandoned it again prior to seeking a hearing on April 30
(Count Five). Nor can we identify any record support for such
a bouncing ball of a mail fraud scheme.

Accordingly, 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 -- including those mailings cited in the hung counts.
And because fraudulent intent is an essential element of those
counts, the Double Jeopardy Clause bars their retrial. Yeager,
129 S. Ct. at 2369.
 17

IV

We now examine Counts Six and Seven, the false claim and
theft of public money charges. The government does not
dispute Coughlin’s contention that -- on the allegations of this
case -- the false claim and theft counts also require proof of
fraudulent intent at the relevant times. See Appellee’s Br. 1-2,
53-59 (acknowledging that both counts “stemmed from
[Coughlin’s] alleged scheme to defraud”). But while we thus
treat fraudulent intent as an essential element of both counts for
the purposes of this case,4 it is not essential that Coughlin had
such intent at every point between December 2003 and June
2004, the period encompassed by the indictment.

As the district court correctly instructed, 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.” Trial Tr. 82 (Apr. 8, 2009). Likewise, the court
instructed that theft merely requires that Coughlin -- with the
requisite intent -- stole money with “a value in excess of
$1,000.” Id. at 83. The government told the jury the same
thing.5 It is therefore sufficient for the government to prove that

4
Of course, theft of public money “need not [always] be
accomplished by false pretenses or other fraudulent means,” United
States v. Coachman, 727 F.2d 1293, 1302 (D.C. Cir. 1984); breaking
into Fort Knox would do the trick. Nor need we decide whether
specific intent to defraud is a sine qua non of every case under the
false claim statute. Compare United States v. Montoya, 716 F.2d
1340, 1345 (10th Cir. 1983) (suggesting that it is), with United States
v. Maher, 582 F.2d 842, 847 (4th Cir. 1978) (holding that it is not);
see also United States v. Grainger, 346 U.S. 235, 241-44 (1953);
United States v. Catton, 89 F.3d 387, 392 (7th Cir. 1996).
5
See Trial Tr. 13 (Apr. 7, 2009) (“[F]or false claims . . . you don’t
have to believe that the entire claim was false. All the government has
 18

Coughlin had the requisite fraudulent intent at the time he made
part of a false claim, even if that part did not constitute the
entirety of the amount he was seeking over the period charged
in the indictment. Such proof also suffices for the theft count
because the indictment alleged that Coughlin carried out his
theft by means of the same false claim.

We now proceed to consider whether proving this essential
element would require “relitigating any issue that was
necessarily decided by [the] jury’s acquittal” on the three mail
fraud counts. Yeager, 129 S. Ct. at 2366. We conclude that it
would not.

A

The indictment charged a fraudulent scheme that ran from
December 2003 through June 2004. As we held in Part III, the
jury’s acquittal on the last of the five mail fraud counts (Count
Five) necessarily means it found that Coughlin did not have the
requisite fraudulent intent on April 30, the date of that mailing.
Moreover, because the government did not suggest -- either
through argument or evidence -- that Coughlin had previously
harbored such a scheme but had abandoned it by April 30 (or
that he had repeatedly abandoned and revived it in “bouncing
ball” fashion), the jury’s acquittal on Count Five necessarily
means it found that he lacked the requisite intent prior to that
time as well.

It does not follow, however, that Coughlin necessarily
lacked the requisite intent after April 30. In finding that no

to prove . . . is that a claim was false either entirely or in part. So even
if you found that only part of it was false, he still . . . would be guilty
[of] that offense.”); id. at 14 (noting that Coughlin was charged with
knowingly “stealing . . . money in excess of $1,000”).
 19

fraudulent scheme existed on or before April 30, the jury did not
necessarily decide anything about Coughlin’s state of mind after
that date. To put it another way: if the jury believed that
Coughlin only made fraudulent misrepresentations at the May
13 hearing, it could still have acquitted him of mail fraud
regarding the April 30 mailing. Indeed, if that were the jury’s
belief, it could only have convicted him for the April 30 mailing
if it had no basis for distinguishing between his pre- and post-
April 30 intent, and hence viewed the May 13
misrepresentations as proof of fraudulent intent stretching back
to April 30. But while the government had neither theory nor
evidence for temporally distinguishing Coughlin’s intent during
the period from December 2003 through April 2004, it had both
to support the conclusion that something new arose thereafter.

According to the government, the jury could have partially
rejected the charges in the indictment by determining that,
through April 2004, Coughlin sought only compensation to
which he believed he was entitled. In finding that Coughlin
lacked fraudulent intent during that period, the jury could have
determined 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.
Nonetheless, the government continues, its trial team presented
the jury with a basis for concluding that, by the time of the May
13 hearing, Coughlin was seeking additional compensation --
specifically, for economic injury -- to which he knew he was not
entitled. And a rational jury could have believed that Coughlin
committed fraud on that date by submitting false evidence of
such injury.

This contention is consistent with the arguments the
government made at trial. The prosecutor began her opening
statement by describing the manner in which she alleged
Coughlin had initially schemed to falsely persuade the VCF that
 20

the events of 9/11 caused him to suffer a physical disability.
The “evidence will show you,” the prosecutor said, “that
[Coughlin] was injured long before 9/11,” Trial Tr. 14 (Mar. 10,
2009), that he “created and manipulated the evidence to make it
appear that he suffered a significant injury on 9/11, when he
knew that wasn’t the case,” id. at 16, and that this manipulation
included the submission of false medical information through
the mail, id. at 26. But once those false submissions led to
reversal of the ineligibility determination, the prosecutor
continued, “the question” was not whether Coughlin would
receive an award but “how much.” Id. at 27. “So, defendant
Charles Coughlin schemed to increase the amount of his award.
At the hearing on May 13th, 2004, he submitted receipts and
copies of check carbons that he claimed represented payments
to others for services that he could no longer perform. As you
will hear, this was not completely true.” Id. (emphases added).

That a rational jury could have believed there was fraud at
the May 13 hearing, even if it found there was none before, is
also consistent with the evidence at trial. The January 22
application letter that Coughlin’s attorney first sent the VCF
expressly stated that “[t]here is no claim for loss of income or
loss of past or present earnings in this case.” Letter from W.
Laake to VCF (Jan. 22, 2004) (R.E. 2641). Rather, the letter
made clear that Coughlin’s “claim is for the personal injuries
that he suffered.” Id. He sought precisely $180,000 -- $5,000
a year, multiplied by a life expectancy of 36 additional years --
“for what he has suffered and what he is likely to suffer for the
rest of his life.” Id.

By the time of the May 13 hearing, however, Coughlin’s
claims had expanded. As his attorney explained to the hearing
officer, Coughlin was now seeking review of the VCF’s $60,000
award for two reasons. Award Appeal Hr’g Tr. 5-6 (May 13,
2004). First, as a measure of non-economic loss it “amounts to
 21

approximately $1,690 a year,” which was “unfair and inadequate
and in and of itself would give rise to a request for review.” Id.
But that amount was also “an egregious error” because it
“provided no compensation for economic loss to the Claimant.”
Id. at 5 (emphasis added). As the attorney acknowledged,
however, this was not the VCF’s fault: “[O]ne of the things that
we didn’t spell out in the initial claim and that the claim
evaluator really didn’t have before him -- and it was an
oversight on my part . . . -- was the fact that there was a past,
present, and future loss of earnings component to this claim,
which was never even made initially.” Id. at 6-7. That is, the
attorney reiterated at the end of the hearing, the January 22
application “did not include the economic loss that we presented
to you today.” Id. at 51-52.

Coughlin submitted nine new exhibits in support of his new
claim for economic loss on May 13. One was a statement from
Coughlin’s employer -- a statement that Coughlin, himself, had
written -- representing that his salary was $150,000 and that he
had been forced to take 90 hours off from work for medical
appointments relating to the injuries he suffered on 9/11. Letter
from J. Sayres to VCF (undated) (Record Material Tab E); see
Trial Tr. 18 (Apr. 6, 2009). A second was a detailed schedule of
“past economic losses” and “future economic losses.” R.E.
2797-802. To calculate past economic losses, the schedule
multiplied the hours that Coughlin said he missed for medical
appointments by the hourly value of his $150,000 salary. To
estimate losses due to future appointments, it applied the same
hourly value.

The schedule also listed payments that Coughlin said he had
made for such tasks as painting, window washing, and putting
up Christmas lights. This, he said, was work he would have
done himself but for his injuries. To substantiate these
payments, Coughlin for the first time included what he
 22

represented were carbon copies of the original checks. The
payments formed the basis for his estimates of the cost of future
replacement services for which he now sought compensation.

At trial, the government contended that Coughlin’s
economic submissions at the May 13 hearing were fraudulent.
It offered evidence that Coughlin’s yearly salary -- the basis for
the calculation of the value of his lost time -- had never been
$150,000. See Trial Tr. 22-26 (Apr. 6, 2009). It elicited
testimony that most of the injury-related absences from work
claimed by Coughlin had never happened, and that the few that
had took much less time than he indicated in that calculation.
Trial Tr. 28-32 (April 6, 2009). A special agent also testified
that much of the financial information Coughlin submitted to
support his estimate of the cost of future replacement services
did not match up with bank records. The agent said Coughlin
listed checks that were actually for lower amounts, were made
out to different payees, or did not exist at all. Trial Tr. 4-43
(Mar. 25, 2009). So, too, many of the carbons Coughlin
submitted did not match the checks that actually passed through
his bank account. See, e.g., id. at 25-27 (testimony that checks
corresponding to carbons indicating payment for window-
washing services were actually made out to a swim club and an
income-tax preparer). In total, the government contended that
more than a third of the 32 check carbons submitted on May 13
were “fake.” Trial Tr. 47-50 (Apr. 7, 2009).

To summarize: Although the jury’s acquittals necessarily
decided that Coughlin lacked fraudulent intent prior to May, that
did not preclude proof of an essential element of the false claim
and theft counts. What was essential for those counts was proof
that he had the requisite intent when he made false submissions
before the end of June, the close of the period specified in the
indictment. Because the evidence regarding the May 13 hearing
would have permitted a rational jury to convict him on those
 23

counts while acquitting him on the (earlier) mail fraud counts,
the Double Jeopardy Clause does not bar reprosecution.

B

Coughlin offers several arguments to rebut the contention
that the jury could have acquitted him on the mail fraud counts
without also deciding facts that preclude retrial on the false
claim and theft charges. None persuade us.

1. Coughlin maintains that we must bar retrial on Counts
Six and Seven because he presented the defense of good faith --
which the jury necessarily accepted with respect to the acquitted
counts -- as a defense to all of the charges against him. See
Appellant’s Br. 48-49. We agree that if the jury believed
Coughlin acted in good faith with respect to all of the
submissions he made to the VCF, he could not be retried on any
of them. But it does not follow that, because the jury believed
Coughlin was acting in good faith at the time of some of his
submissions, it had to have believed that was so with respect to
each of them.

Coughlin never made such an argument to the jury. Instead,
in his closing, Coughlin’s attorney carefully countered the
government’s evidence with respect to each individual
accusation of fraud or falsity, one by one. The failure to argue
that everything rose and fell together was for good reason.
Coughlin would hardly have wanted the jury to think that good
faith was an all-or-nothing defense in the opposite sense -- that
if the jury found bad faith with respect to any one of the
statements that Coughlin made, it would necessarily have to
convict him on all seven counts.

Nor did the government suggest that conviction depended
upon a conclusion that Coughlin’s claims were offered wholly
 24

in bad faith. We have already noted that it told the jury that
“you don’t have to believe that the entire claim was false.” Trial
Tr. 13 (Apr. 7, 2009); see supra note 5. More directly, the
prosecutor told the jury that it could convict even if it found that
Coughlin had good faith with respect to some of his
submissions. “You may very well believe he was hurt,” the
government acknowledged, but “[w]hat we’ve proven to you
with evidence is that he lied to the VCF” about other matters.
Trial Tr. 43, 44 (Apr. 8, 2009).

2. Coughlin also contends that, because the indictment
described a single fraudulent scheme that assertedly lasted from
December 2003 through June 2004, the jury could not have
found a narrower scheme that did not begin until May 2004. We
agree with the defendant that, for the government to prevail on
the “narrower scheme” theory on appeal, it must have presented
the jury with the possibility of finding such a scheme at trial.
See Ashe, 397 U.S. at 445; Sealfon v. United States, 332 U.S.
575, 579-80 (1948). But as we noted above, the government did
tell the jury that Coughlin made new false claims at the May 13
hearing -- claims relating to economic damages -- that were in
addition to the allegedly false claims he had previously made
regarding physical injuries. And the trial evidence provided a
basis for this distinction. See supra Part IV.A.6

The fact that the indictment alleged a singular “scheme” did
not (and does not) bar the government from making the
narrower-scheme argument.7 To the contrary, it is both common

6
These circumstances distinguish the various circuit court
opinions Coughlin cites for the proposition that the government may
not retry him on a theory not presented at the first trial.
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
 25

and appropriate for the government to allege a broader scheme
yet prove a narrower one. In United States v. Miller, for
example, the Supreme Court rejected a claim that “the Fifth
Amendment’s grand jury guarantee is violated when a defendant
is tried under an indictment that alleges a certain fraudulent
scheme but is convicted based on trial proof that supports only
a significantly narrower and more limited, though included,
fraudulent scheme.” 471 U.S. 130, 131 (1985) (footnote
omitted). By alleging a larger scheme, the Court held, the
government does not lock itself into proving every part of that
scheme. Rather, it can rest on any part that suffices to establish
the elements of the crime charged. See id. at 131, 135-36.

In accord with this principle, the circuit courts have
approved convictions for mail fraud where the government
proved only a (legally sufficient) subset of the bad acts with
which it initially charged the defendant. As this court has noted,
“it is not an infrequent practice in mail fraud cases to allege the
full scheme to allow for contingencies of proof, but many times
the prosecution or the court reduces the number of counts and
restricts the proof to sufficient representative counts to present
the substance of the offense.” United States v. Jordan, 626 F.2d
928, 930 (D.C. Cir. 1980).8 Nor is it unusual for the circuits to

statute. Compare 18 U.S.C. § 1341 (requiring that the defendant
devised or intended to devise a “scheme or artifice to defraud”), with
id. § 287 (requiring only that the defendant presented a “claim upon
or against the United States . . . knowing such claim to be false,
fictitious, or fraudulent”), and id. § 641 (requiring only that the
defendant “embezzle[d], st[ole], purloine[d], or knowingly convert[ed]
to his use . . . any . . . money, or thing of value of the United States”).
8
See Jordan, 626 F.2d at 930 (upholding conviction for mail
fraud scheme where the indictment alleged that the proceeds of the
scheme were $110,000, but the government proved only $4,000-
$5,000 in fraudulent checks); United States v. Kuna, 760 F.2d 813,
 26

affirm a conspiracy conviction where the conspiracy is initially
charged to cover a specified period, but subsequently proved
only with respect to a portion of that period.9

The facts at issue in Miller, also a prosecution under the
mail fraud statute, are particularly instructive here. The
indictment charged a single scheme to defraud Miller’s insurer
by claiming a loss due to a purported burglary, a scheme that
allegedly began in July 1981 and ran until October 1981. See
471 U.S. at 131-32 & n.2. The indictment alleged that one
“part” of the scheme involved Miller’s consent to the burglary,
and that a “further part” involved his fraudulent inflation of the
amount of property lost in the crime. Id. at 132 & n.2.

816-19 (7th Cir. 1985) (affirming conviction on five counts of mail
fraud beginning in August 1980, notwithstanding that the district court
acquitted the defendant on other counts involving earlier mailings
because it “rejected the government’s theory that [he] had intended at
the outset to defraud his investors”).
9
See United States v. Jackson, 627 F.2d 1198, 1202, 1212-13
(D.C. Cir. 1980) (upholding conviction where the indictment alleged
a conspiracy to distribute heroin from June 24 through August 16,
1977, notwithstanding that the government failed to prove the
defendant’s complicity in a conspiracy prior to June 27); United States
v. Portela, 167 F.3d 687, 694, 699-702 (1st Cir. 1999) (affirming
conviction where the indictment alleged a single conspiracy lasting
through July 1996, but the district court found that it ended in May
1995); United States v. Ailsworth, 138 F.3d 843, 848-50 (10th Cir.
1998) (upholding conviction where the indictment alleged a
conspiracy between March 1993 and March 1994, but the evidence
only established that the defendant participated in a conspiracy on
November 19, 1993); United States v. Bowers, 739 F.2d 1050, 1053
(6th Cir. 1984) (affirming conviction where the government’s
evidence “showed a conspiracy with fewer people, of shorter duration
and in a smaller area than charged” in the indictment (internal
quotation mark omitted)).
 27

Although the government proved only the latter, the Court
upheld Miller’s conviction, rejecting the argument that the
difference between the scheme asserted and proved necessarily
constituted a “fatal variance” requiring reversal. Id. at 131-33.

Coughlin’s indictment followed the same pattern. Although
Coughlin is correct that “[t]he one and only Indictment allege[d]
one and only one scheme,” Appellant’s Reply Br. 17, 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. For
example, the indictment charged that it “was part of the scheme”
that on December 19, 2003, Coughlin “falsely claim[ed] that he
suffered a partial permanent disability from the [9/11] attack,”
and “a further part of the scheme” that on January 22 and
February 3, 2004, he “provid[ed] false and misleading
information regarding his pre-September 11th and post-
September 11th medical condition.” Indictment ¶¶ 8, 10. But
the indictment also alleged that fraud regarding economic injury
was a part of the scheme. In that regard, it charged that it was
yet “a further part of the scheme that on or about May 13,
2004,” Coughlin submitted “manufactured copies of checks
falsely claiming that they represented payments to others for
performing household activities,” as well as “schedules relating
to losses of past earnings, knowing full well that such losses had
not been incurred.” Indictment ¶¶ 16, 17. Indeed, not only did
the indictment distinguish physical from economic injury, it did
so temporally -- it did not specify any misrepresentations
relating to economic injury as having been made before May 13.

Thus, while Coughlin is correct that the indictment’s
“singular alleged scheme” was also “incorporated into Counts
Six and Seven,” Appellant’s Reply Br. 15; see Indictment ¶¶ 20,
22, what we have just said about the scheme’s multi-part nature
 28

renders this observation irrelevant. Indeed, when we focus
specifically on the text of the false claim and theft counts, the
line between physical and economic injury stands out in high
relief. Count Six charged that Coughlin’s false claim “contained
false and fraudulent assertions concerning [Coughlin’s] medical
condition and physical abilities . . . and false and fraudulent
assertions concerning alleged economic losses resulting from
those injuries.” Indictment ¶ 21 (emphasis added). Similarly,
Count Seven charged that Coughlin unlawfully obtained money
from the United States based on “false, fraudulent and
misleading . . . representations concerning [Coughlin’s] physical
condition . . . and the economic damages [he] . . . incurred and
anticipated incurring as a result of the injuries [he] purportedly
sustained.” Id. ¶ 23 (emphasis added). And, as the Supreme
Court has repeatedly held, the government is entitled to prove
criminal acts in the disjunctive, notwithstanding that the
indictment charges them in the conjunctive. See Griffin v.
United States, 502 U.S. 46, 56-60 (1991); Miller, 471 U.S. at
136; Turner v. United States, 396 U.S. 398, 420 (1970).10

In sum, the fact that the indictment charged a scheme
lasting from December 2003 through June 2004 did not prevent
the government from attempting to prove narrower schemes of

10
Indeed, under Circuit precedent, “[t]he correct method of
pleading alternative means of committing a single crime is to allege
the means in the conjunctive.” United States v. Lemire, 720 F.2d
1327, 1345 (D.C. Cir. 1983); see Joyce v. United States, 454 F.2d 971,
976 (D.C. Cir. 1971) (stating that, “[t]o charge the offense in the
disjunctive (as it appears in the strict language of the statute), that the
accused did one thing ‘or’ the other, would make the indictment bad
for uncertainty, so it is necessary to connect them with the conjunctive
‘and’”). See generally Orin Kerr, The Strange Practice of Indicting in
the Conjunctive, THE VOLOKH CONSPIRACY (Sept. 25, 2009, 1:23
PM), http://volokh.com/posts/1253899387.shtml (questioning the
practice).
 29

different temporal durations during that period. And as we
explained in Part IV.A, the government did just that, offering
evidence that after April 2004 Coughlin embarked on an effort
to fraudulently obtain economic damages. The wording of
Counts Six and Seven supported -- and could support on retrial
-- a conviction on that basis.

3. 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 the 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.”
Appellant’s Br. 56-57. 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. Letter from W. Laake to VCF (Jan. 22, 2004)
(R.E. 2565). Indeed, as Coughlin’s attorney later told the
hearing officer, that was the case until May 13. Award Appeal
Hr’g Tr. 5-7, 51-52 (May 13, 2004). 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,11 its acquittals on mail fraud counts relating to dates

11
See Trial Tr. 78 (Apr. 8, 2009) (court’s instruction that an
essential element of mail fraud is that the “defendant knowingly
 30

before May 13 did not necessarily mean that Coughlin had made
no false economic submissions before that date.12

At oral argument, Coughlin contended 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 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. This argument is not without force, but it does not prevail.
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. For example,
Coughlin testified that he did not start putting together the
schedule outlining his economic damages until a few days
before the May 13 hearing. Trial Tr. 150-51 (Apr. 1, 2009).
And there is no dispute that his May 13 submissions contained

devised . . . a scheme to defraud and to obtain money by means of
materially false or fraudulent pretenses, representations or promises”)
(emphasis added); id. at 80 (defining materiality); Trial Tr. 12-13
(Apr. 7, 2009) (government’s statement that Coughlin’s
misrepresentations “have to be [of] material facts” and that a false
representation is not material if “he is not going to get more money or
less money based on” that representation); see also Neder v. United
States, 527 U.S. 1, 25 (1999) (holding “that materiality of falsehood
is an element of the federal mail fraud . . . statute[]”).
12
Even if the January replacement-cost submissions were
material, Coughlin’s May 13 submissions contained economic-loss
calculations that he had never previously presented -- as we note in the
next paragraph. A rational jury could have found that the earlier
submissions were legitimate without necessarily so finding with
respect to the later ones.
 31

alleged economic losses that he had never previously
presented.13 Thus, the jury could have found that Coughlin
lacked fraudulent intent in seeking to obtain some legitimate
economic damages on April 30, without also finding that he did
not make fraudulent claims about his economic losses at a later
date.

The Supreme Court has instructed that we are to focus only
on what the jury “necessarily” decided, and to refrain from
barring a retrial if a “rational jury could have grounded its
verdict upon an issue other than that which the defendant seeks
to foreclose from consideration.” Yeager, 129 S. Ct. at 2367
(quoting Ashe, 397 U.S. at 444). Here, a rational jury could
have grounded its mail fraud acquittals upon the absence of
fraudulent intent with respect to claims Coughlin made as of
April 30, without believing that he also lacked such intent with
respect to claims he made on May 13.14

13
See, e.g., Past Economic Losses (R.E. 2798) (claiming a loss of
$7,031 from work missed for doctor and physical therapy
appointments, a figure never previously offered); Future Economic
Losses (R.E. 2800) (claiming future losses for such appointments of
$7,969 annually, a figure also not previously offered).
14
Coughlin further contends that the evidence the government
offered to prove guilt on Count Seven demonstrates that it could only
have been operating under an “all-or-nothing” theory throughout.
Appellant’s Br. 58. Coughlin makes this inference because the
government did not present evidence regarding how the VCF
calculated his final award of $331,034 (beyond indicating that
$180,000 was for non-economic damages and $151,034 was for
economic damages). But Coughlin’s inference -- that the absence of
such evidence means the government did not “actually assert[] the
alternate theory of the ‘narrower scheme,’” Appellant’s Reply Br. 16
-- is belied by the prosecutor’s express language. As we have already
observed, the prosecutor argued that there was new fraud on May 13,
 32

4. Next, Coughlin urges us to reject the government’s
“narrower scheme” argument on the ground of waiver. As he
correctly notes, the United States did not make that argument in
the opposition it filed to Coughlin’s renewed double jeopardy
motion in the district court. Gov’t’s Opp’n to Def.’s Renewed
Mot. to Bar Re-Trial at 4-6. Nor was it the basis of the district
court’s decision.

It is well settled that “this court can affirm a correct
decision even if on different grounds than those assigned in the
decision on review.” Skinner v. Dep’t of Justice, 584 F.3d 1093,
1100 (D.C. Cir. 2009) (internal quotation marks omitted).
Although “absent exceptional circumstances” we generally will
not do so “on grounds that were not raised in the district court,”
id., the circumstances here are exceptional. Coughlin’s renewed
motion came on June 21, 2009, in the midst of the second trial
and just three days after the Supreme Court decided Yeager.
The government had only three days -- without benefit, as
Coughlin acknowledges, of trial transcripts -- to file its response.
See Appellant’s Reply Br. 19. Its failure to assert the narrower-
scheme argument in its opposition is therefore excusable.

Moreover, the government did raise the argument shortly
thereafter when, on July 6, it filed an opposition to Coughlin’s
request for a stay of trial in this court. Appellee’s Mot. to
Summarily Dismiss and Opp’n to Appellant’s Emergency Mot.
to Stay Proceedings at 25-27, United States v. Coughlin, No. 09-
3062 (D.C. Cir. July 6, 2009). Coughlin was thus aware early
on that the government would press the narrower-scheme
argument on appeal. Indeed, he addressed it in his initial brief
and at greater length in his reply brief. The extent of briefing is
a factor we look to in “exercising [our] discretion” to entertain

and that the jury could convict without believing the entire scheme
was fraudulent. See supra Part IV, IV.A, IV.B.1.
 33

arguments not addressed by the district court. See Texas Rural
Legal Aid, Inc. v. Legal Servs. Corp., 940 F.2d 685, 697 (D.C.
Cir. 1991). And we can identify no prejudice to the defendant
from our considering the narrower-scheme argument
notwithstanding the government’s failure to raise it in its June
24, 2009 response.15

5. Finally, Coughlin seeks protection in two cases in which
the Supreme Court held that issue preclusion barred retrials.
The first case is Ashe v. Swenson, in which six poker players
were robbed by a group of masked men. 397 U.S. at 437-38.
Ashe was first tried and acquitted of robbing one of the six
players. “Because the only contested issue at the first trial was
whether Ashe was one of the robbers,” the Court “held that the
jury’s verdict of acquittal collaterally estopped the State from
trying him for robbing a different player during the same
criminal episode.” Yeager, 129 S. Ct. at 2366-67 (citing Ashe,
397 U.S. at 446). The second case is Sealfon v. United States,
in which Sealfon was tried and acquitted of the charge of
conspiring to defraud the United States by presenting false
invoices to a government board. 332 U.S. at 576-77.
Thereafter, he was tried on the charge of aiding and abetting a
man named Greenberg in presenting the same invoices. Because
there was no evidence at the first trial that Sealfon could have
conspired with anyone other than Greenberg, the Court
concluded that his acquittal necessarily meant that he did not aid
and abet Greenberg in presenting the invoices. Id. at 579-80.

15
The only prejudice Coughlin identifies arises not from the
government’s failure to make the argument in its response to the
double jeopardy motion, but rather from its alleged failure to present
a narrower-scheme theory to the jury. But as we have detailed above,
the government’s trial presentation on that score was sufficient. See
supra Part IV.A, B.2.
 34

For reasons that by now should be clear, this case is unlike
Ashe or Sealfon. At Coughlin’s first trial, a unitary scheme to
defraud the VCF was not the only contested issue; there was
also the question of whether he had fraudulent intent with
respect to any part of his claim. Nor was the evidence limited
to a unitary scheme; there was also evidence supporting the
accusation that Coughlin made new fraudulent representations
at the May 13 hearing. Accordingly, neither Ashe nor Sealfon
advances Coughlin’s cause.16

V

For the foregoing reasons, we reverse the district court’s
denial of Coughlin’s double jeopardy motion with respect to
Counts One and Four, and direct the district court to dismiss
those counts. With respect to Counts Six and Seven, we affirm
the district court and remand for further proceedings consistent
with this opinion.

Reversed in part and affirmed in part.

16
Coughlin also presses upon us the Fifth Circuit’s decision on
remand in Yeager, 334 Fed. App’x 707 (5th Cir. 2009), and this
Circuit’s decision in United States v. Bowman, 609 F.2d 12 (D.C. Cir.
1979), both of which are inapposite for the same reasons as Ashe and
Sealfon.