born December 10, 1947 in Chicago, Illinois referred to some as
the Medicare Murderer.
On May 23,
2005 a petit jury consisting of six men and six women
recommended the death penalty for this podiatrist. The case of
the United States versus Ronald Mikos was only the second time
in the history of the Federal Court in Chicago to condemn a
person to death.
The same jury
had on May 5, 2005 convicted Ronald Mikos of defrauding Medicare
out of $1.2 Million by billing the Health and Human Services
program from surgeries he never performed.
He was also convicted
on murdering 54-year old Joyce Brannon, RN, a Church caretaker,
in the basement of an Evangelical Lutheran Church. She died just
a few days before she was set to testify against him before a
Federal Grand Jury.
The jury was
unanimous and found that Brannon suffered from infirmity and had
a number of health problems. This along with aggravating
circumstances qualified the crime for capital punishment. Mikos
was found to have shot Joyce Brannon six times in the head and
back, the final shot into the neck was at point-blank range.
Attorneys John Kocoras and Jeffrey Cramer argued that an attack
or murder of a federal witness was an attack upon the justice
system. Mikos had repeatedly called Brannon begging her not to
testify against him, Brannon relied these conversations to her
sister, Janet Bunch, who testified against Mikos.
In an effort
to save his life Mikos defense attorneys, Cynthia Giachetti and
John Beal, told the jury that Mikos suffered from mental
defects, and that his mind had deterorated from years of drug
abuse and alcoholism.
friends and the mother of two of his five known children
testified that Mikos was a loving father to his three youngest
children. His two older children, who were grown adults, did not
testify on behalf of their father. Nor did any other direct
relative of Mikos testify on his behalf. The jury listened to
taped conversation between Mikos and his son Ronald Mikos, Jr.
(a/k/a Adonis Mikos or also called Adonis King).
notes were made in the Chicago press accounts about the highly
circumstancial evidence in the case; the case was described by
the press as a strong circumstantial case.
investigators from the Federal Bureau of Investigation and the
Department of Health and Human Services proved that Mikos at one
time owned a .22-caliber revolver whose rifling produced bullets
similar to the rounds found in Brannon's body.
records indicated that Mikos was within miles of the crime scene
around the time of the murder. Notes were found on the defendant
at the time of arrest indicating that he had been lurking around
the Church where Brannon lived and worked just days prior to her
death. Bullets found in Mikos' car matched the bullets recovered
from the body of Brannon.
investigators were unable to find the murder weapon itself,
Mikos owned a book at the time of the crime entitled "How to
Mikos did not
testify in his own defense, but did have girlfriend Stacy
Rosenthal testify that he was a loving person, who could make a
positive contribution to society from prison both as an inmate
and a father.
deliberated for less then three complete days before handing
down their verdict. As stated earlier Mikos was only the second
person to be condemned to death by a Federal jury in the City of
Chicago, the first was a street gangster Darryl "Pops" Johnson.
He was also condemned for the murder of a Federal witness.
Foot doctor faces death
penalty in witness-murder trial
Paul Meincke - ABCnews.com
April 19, 2005
Testimony began Tuesday in the murder trial
of a Chicago podiatrist. Dr. Ronald Mikos is accused of shooting
and killing a patient back in 2002 because she planned to
testify against him in a Medicare fraud investigation.
Joyce Brannon was shot six
times at point-black range four days before she was to give
grand jury testimony against her podiatrist, Dr. Ronald Mikos.
Mikos at the time was
under investigation for submitting phony bills to Medicare --
over a million dollars in bills for more than 6,000 procedures
that prosecutors say he never performed.
In opening statements
Tuesday prosecutor Jeff Cramer said Mikos killed Brannon because
he was afraid she would talk and reveal his scam, which in fact
was Brannon's intent. Joyce was proud, said Cramer, and
determined not to commit perjury.
Because he couldn't
convince her to lie on his behalf, Cramer said Mikos went to
Joyce Brannon's apartment on January 27, 2002 and emptied his
six shot revolver into a woman who -- because of a previous
accident -- had great difficulty walking.
Her grand jury subpoena
was found just a few feet from her body. Mikos, an immediate
suspect, was jailed on murder charges a week later. His
attorney, Cynthia Giachetti, told jurors Tuesday Ronald Mikos
did not kill Joyce Brannon.
There were no witnesses,
and no direct evidence tying Mikos to the crime scene -- no
hairs, no fiber, no DNA, no blood.
Prosecutors have a strong
case based on motive and intercepted phone calls.
This is a death penalty
case because it involves the murder of a government witness.
Joyce Brannon was shot to death in her basement apartment at
Bethany Lutheran Church in Evanston where she served as church
Her sister and 93-year-old
mother were in court Tuesday for the start of testimony in a
trial that is expected to last three to four weeks.
Jury recommends death
sentence for killer foot doctor
May 23, 2005
A Chicago podiatrist was condemned to death
by a federal jury Monday for fatally shooting a disabled woman
at point-blank range to keep her from testifying against him in
a $1 million Medicare fraud case.
Ronald Mikos, 56, sitting
at the defense table with folded hands and three husky federal
marshals standing behind him, showed no emotion as U.S. District
Judge Ronald A. Guzman read the jury's verdict in the penalty
phase of the trial.
"We find unanimously that
Ronald Mikos should be sentenced to death," Guzman read. Under
federal law, Guzman now has no choice but to impose the death
Mikos was only the second
defendant to be condemned to death in the history of Chicago's
Everett M. Dirksen Federal Courthouse. The first, street gang
leader Darryl "Pops" Johnson, is awaiting execution for the
murder of two federal witnesses.
The jury began
deliberating around noon Wednesday and remained at work
Thursday, then took a three-day weekend before returning its
verdict shortly after noon on Monday.
Mikos can appeal his death sentence. His attorneys, John Beal
and Cynthia Giacchetti, left the courthouse without comment.
Mikos was convicted May 5
of defrauding Medicare out of more than $1 million by billing it
for thousands of surgeries that he never performed. He was also
convicted of murdering Joyce Brannon, 54, a nurse, in December
2002 days before she was to testify against him before a federal
Brannon had a number of
health problems and had trouble walking. She was shot six times
in the head and neck as she tried in vain to get out of her
chair. The final shot was at point-blank range.
Her grand jury subpoena
was found near her body in her apartment in the basement of a
North Side church.
Mikos now faces execution
for murdering her in an effort to cover up a crime that would
have gotten him just three or four years in federal prison at
worst, officials said.
"If Dr. Mikos would have
just taken the punishment for which he was being investigated,
he would be walking the streets today," said Joseph C. Ways, the
assistant special agent in charge of the FBI's Chicago office.
"He would have been released probably with time served for the
Medicare fraud that he committed. Unfortunately, he did not see
it that way and he decided to take matters into his own hands."
Brannon's sister, mother
and other relatives issued a statement through the U.S.
attorney's office, saying it was "beyond belief that someone
could murder Joyce in such a horrible way."
"Those who knew Joyce --
her family, her friends, members of her church, which was her
life -- cannot comprehend how anyone could end her life in this
way, even someone desperate to escape punishment for other
crimes," they said.
"We will always remember
Joyce and be proud of her for doing what she knew was right even
though, tragically, she lost her life for doing so," they said.
"We fully support the wisdom and strength of this jury and the
tough decisions that they have handed down -- we know it wasn't
Federal prosecutors made
it plain that they were intent on getting a death sentence.
Assistant U.S. Attorneys
John Kocoras and Jeffrey Cramer both told the jury that the
nation's criminal justice system would break down unless the
murder of federal witnesses was answered with the most severe
But federal prosecutors
said there was no telling how soon Mikos may go to the execution
chamber. They noted that Johnson has been awaiting execution for
about nine years.
Mikos had repeatedly urged
Brannon not to testify against him, but she insisted on
testifying before the grand jury on how he had used her medical
information, obtained years earlier, to bill Medicare for
numerous surgeries that were never actually performed.
Federal investigators also could prove that
Mikos at one time owned a gun similar to the one that was used
to kill Brannon. They found bullets for such a gun in his car.
But they have not so far been able to find the murder weapon
They also could show that
Mikos had been lurking around the church where Brannon lived in
the days before the shooting took place.
In trying to save Mikos
from the execution chamber, the defense attorneys all but
conceded that he had worked a large-scale Medicare fraud but
suggested someone else may have been the killer. After his
conviction, they presented evidence that at the time of the
killing he was suffering from alcoholism and opiate addiction
and was also a victim of severe depression.
psychiatrists to testify that he appeared to have some form of
degenerative brain condition that could have affected his
UNITED STATES v. MIKOS
UNITED STATES of America, Plaintiff-Appellee,
Ronald MIKOS, Defendant-Appellant.
Nos. 06-2375, 06-2376, 06-2421.
United States Court of Appeals
For the Seventh Circuit
Argued Aug. 16, 2007. -- August 25, 2008
Before EASTERBROOK, Chief Judge, and POSNER and EVANS, Circuit
David E. Bindi (argued), Office of the United
States Attorney, Chicago, IL, for Plaintiff-Appellee.Barry Levenstam (argued),
Jenner & Block, John M. Beal, Chicago, IL, for Defendant-Appellant.
Medicare does not cover the costs of routine
medical procedures. Ronald Mikos, a podiatrist, performed nothing
but routine procedures, such as trimming the toenails of people unable
to clip their own. Yet he billed Medicare for thousands of surgeries.
When officials became suspicious, Mikos arranged for some of his
elderly patients (many of whom were not mentally competent) to submit
affidavits stating that surgeries had indeed occurred (though at trial
Mikos's secretary of seven years testified that he had never performed
a single surgery during her time in his employ, and medical
specialists who examined these people found no signs of surgery).
Other patients were less obliging, so Mikos wrote affidavits for them
and had their signatures forged. A grand jury issued subpoenas to
seven of Mikos's patients. He visited them, trying to dissuade each
from testifying. None appeared to testify-whether because of Mikos's
persuasiveness or because of their own mental and physical limitations,
the record does not show. But we know why one of the seven did not
show up. Joyce Brannon, who by then was cooperating with the
investigators, had been shot six times at close range. After
concluding that Mikos had slain her, the jury sentenced him to death.
See 18 U.S.C. § 1512(a)(1)(A). It also convicted him of other
crimes, including fraud, obstruction of justice, attempting to
influence a grand jury, and witness tampering. 18 U.S.C. §§ 1341,
1347, 1503, 1505, 1512(b)(1).
The evidence of fraud and witness tampering is
overwhelming and essentially uncontested, though a dispute about the
amount of loss requires some attention later. The evidence of murder
also is strong.
Brannon had retired from her job as a nurse to
become the secretary of a church, where she lived in the basement.
The lack of shell casings led police to conclude that the killer had
used a revolver. The bullets were .22 long rifle rim-fire, brass-coated
rounds with solid round noses, concave bases, and multiple knurled
cannelures. Each bullet had been fired from a barrel with eight
lands and grooves; the rifling had a right-hand twist.
Mikos owned a gun that could have fired those
bullets. The police knew this because, three weeks before Brannon's
murder, they had been called to the house of Shirley King, one of
Mikos's girlfriends, and discovered that Mikos kept multiple firearms
in King's residence. When Mikos could not produce a current firearm
owner's identification card, the police took away the guns and
ammunition, giving Mikos a detailed inventory. After renewing his
card, Mikos retrieved the guns and transferred them to his storage
unit at a stand-alone facility. After the murder, police searched
the unit and found everything on the inventory, down to the last
bullet-except for a .22 caliber Herbert Schmidt revolver that fired
long rifle ammunition. A search of Mikos's car turned up a box of
Remington .22 long rifle rim-fire, brass-coated rounds with solid
round noses, concave bases, and multiple knurled cannelures. Twenty
shells were missing from the box. The Schmidt revolver was never
found. The car contained one spent casing with a mark made by a
hemisphere-shaped firing pin. A Schmidt .22 revolver would have left
such a mark (an unusual one).
One member of the church's staff saw Mikos (or
someone who looked like him) at the church a week before Brannon's
murder. The witness described the intruder's hair as gray, which
Mikos's was not, but when searching his car the police found a bottle
of gray hair coloring. That car also contained handwritten details
of the church's schedule-details that revealed when a person could
enter Brannon's apartment without being seen. Data on his smart
phone showed that he had been trying systematically to contact all of
his patients who had been subpoenaed to provide records or testimony
in the investigation. Records showed that he placed and received
calls that went through cell towers near Brannon's church at
approximately the time that he was identified as being there the week
before the murder, and again one and two days before the murder. A
jury could conclude that he had been watching to find the right
opportunity to slip into Brannon's apartment. He had a motive to
want Brannon silenced, and she (unlike many other patients) had
resisted his efforts at persuasion. He owned a weapon that could
have done the job, and the gun's disappearance is revealing. Motive,
opportunity, and ability allowed a jury to find that Mikos killed
Brannon to prevent her from testifying-and that is a capital crime.
1. Federal agents entered Mikos's storage unit on
the authority of a “sneak and peek” warrant. This kind of warrant
permits inspection but not seizure. See 18 U.S.C. § 3103a. Lack of
seizure explains the “peek” part of the name; the “sneak” part comes
from the fact that agents need not notify the owner until later.
Such warrants are designed to permit an investigation without tipping
off the suspect.
Agents who executed the sneak-and-peek warrant
found so many firearms, and so much ammunition, that they could not
learn what was there without removing the guns and ammo from the
storage unit and spreading them on the ground immediately outside the
door, where they could be photographed. The agents also decided that
there was no point in deferring the seizure, so one of their number
was dispatched to obtain a regular warrant. It issued swiftly, and
approximately four hours after arriving at the storage unit the agents
executed the regular warrant and hauled away the guns and ammo.
While waiting for that warrant, agents had tested several of the
weapons to see whether they worked (they did).
Mikos contends that the evidence seized from the
storage unit should have been suppressed, because by moving some of
the guns outside and testing them the agents effected a “seizure” that
the warrant did not authorize. We may assume that a seizure occurred,
cf. Bond v. United States, 529 U.S. 334, 120 S.Ct. 1462, 146 L.Ed.2d
365 (2000) (feeling an opaque bag to gain information about its
contents); Arizona v. Hicks, 480 U.S. 321, 107 S.Ct. 1149, 94 L.Ed.2d
347 (1987) (turning audio gear over to read its serial number), but
use of the exclusionary rule would be unwarranted. First, the
§ 3103a warrant authorized the agents to enter and inspect the storage
locker, and by moving and testing the guns agents did not cause Mikos
any distinct injury; second, a seizure was inevitable once the agents
saw Mikos's arsenal. A premature seizure does not lead to exclusion
of evidence when a warrant, authorizing everything that occurred, was
certain to issue. See, e.g., Nix v. Williams, 467 U.S. 431, 104 S.Ct.
2501, 81 L.Ed.2d 377 (1984); United States v. Tejada, 524 F.3d 809
(7th Cir.2008). Cf. Hudson v. Michigan, 547 U.S. 586, 126 S.Ct.
2159, 165 L.Ed.2d 56 (2006) (exclusion unjustified when the error is
not in the causal chain leading to the evidence). Here the steps to
obtain a regular warrant were begun almost as soon as the agents saw
the trove and were ongoing when the test-firings occurred; the fully
authorized seizure took place within hours. Suppression of this
evidence, seized with both probable cause and judicial authorization,
would be a windfall that the fourth amendment does not command.
2. Mikos contends that the prosecutor violated the
fifth amendment's self-incrimination clause by asking the jury to
infer guilt from the fact that the Schmidt revolver was missing. He
characterizes this line of argument as an impermissible comment on his
failure to testify. See Griffin v. California, 380 U.S. 609, 85 S.Ct.
1229, 14 L.Ed.2d 106 (1965). Whether Mikos testified was not
relevant to the inference the prosecutor proposed, however; it would
have been equally strong had Mikos tried to explain the gun's
disappearance but left the jury unconvinced. It is entirely
appropriate to draw an inference from the facts that (a) Mikos owned a
particular weapon, (b) the weapon could have inflicted the fatal
wounds, and (c) the weapon vanished at about the time of the murder,
even though other weapons known to have been in the same place are
accounted for. It is these facts, and not Mikos's decision to remain
silent, that support an inference unfavorable to him. Nothing in
Griffin or its successors prevents a prosecutor from urging the jury
to draw inferences from events that can be established by evidence
independent of the accused's silence. See United States v. Robinson,
485 U.S. 25, 108 S.Ct. 864, 99 L.Ed.2d 23 (1988); United States v.
Sblendorio, 830 F.2d 1382, 1391-92 (7th Cir.1987).
Mikos finds significance in the prosecutor's
statements to the jury that “the only possible explanation for this
gun being missing is because [Mikos] doesn't want it brought in here”
and that Mikos was playing a “game of hide-and-go-seek”. He
characterized these statements as efforts to hold his silence against
him. We read them, however, as efforts to hold his conduct against
him. Hiding a gun is conduct, not (lack of) speech. Drawing
inferences from the defendant's (mis)conduct is what a trial is all
3. The power of the inference from the gun's
disappearance depended on proof that it could have fired the bullets
that killed Brannon. Paul Tangren, an FBI agent who specializes in
firearms' rifling and ballistics, testified as an expert that the
gun's serial number revealed it to be a “Deputy Combo” model, and that
a database of weapons maintained by the FBI shows that barrels of
Herbert Schmidt Deputy Marshal models have eight grooves with a right-hand
twist, matching the bullets that killed Brannon. Tangren also
testified that the Deputy Combo and Deputy Marshal guns are physically
identical; only the trade name differs. He retrieved a Herbert
Schmidt Deputy Marshal revolver from the FBI's armory, fired it, and
verified that the barrel had eight grooves and a right twist. Mikos
insists that his gun was a “Model 21” rather than a “Deputy Combo” or
“Deputy Marshal” and that the Herbert Schmidt Model 21 has only six
grooves. Tangren testified, however, that the serial number could
have been assigned only to a “Deputy Combo” model.
Mikos contends that the district judge should not
have allowed the agent to deliver any of this testimony. The agent
was not qualified as an expert under Fed.R.Evid. 702, Mikos maintains,
because there is no scholarly literature on the rifling of gun barrels,
and the FBI's database is inaccurate (or at least incomplete).
Publication is not a sine qua non of expert testimony, see Daubert v.
Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 593, 113 S.Ct. 2786,
125 L.Ed.2d 469 (1993), and whether the gun was a “Deputy Combo” or a
“Model 21” is a factual question on which the district judge's
findings must stand unless clearly erroneous, which they are not. (The
jury had to decide in the end whether the missing gun was a model that
would have produced bullets with eight grooves; we speak here only of
the district court's preliminary findings that determine admissibility.
See Fed.R.Evid. 104(a); United States v. Martinez de Ortiz, 907
F.2d 629 (7th Cir.1990) (en banc).)
District judges may admit testimony resting on
“scientific, technical or otherwise specialized knowledge” that will
assist the trier of fact. Fed.R.Evid. 702. Testimony based on the
FBI's rifling database may not have been “scientific”, but it was both
“technical” and “specialized”. Rule 702 does not condition
admissibility on the state of the published literature, or a complete
and flaw-free set of data, but on these criteria:
[A] witness qualified as an expert by knowledge,
skill, experience, training, or education, may testify thereto in the
form of an opinion or otherwise, if (1) the testimony is based upon
sufficient facts or data, (2) the testimony is the product of reliable
principles and methods, and (3) the witness has applied the principles
and methods reliably to the facts of the case.
The district court concluded that these
requirements had been satisfied-that the FBI's rifling data were
“sufficient” and that the witness has applied “reliable ․ methods” in
a reliable fashion. Appellate review is deferential, see General
Electric Co. v. Joiner, 522 U.S. 136, 118 S.Ct. 512, 139 L.Ed.2d 508
(1997), and the district court did not abuse its discretion. Tangren
not only looked up the content of the rifling database (learning that
16 models could have produced the sort of rifling observed on the
bullets) but also tested the database's contents by firing a Herbert
Schmidt Deputy Marshal revolver, which produced bullets with eight
grooves and a right twist. The only purpose of the exercise was to
learn whether Mikos's revolver could have been the murder weapon; the
FBI agent candidly disclosed that at least 15 other models also could
have fired those bullets. (“At least” because the database does not
include every make and model of gun ever sold.) A database that does
not include every weapon ever made can produce false negatives-that is,
a gun that actually fired the bullets may have been omitted from the
database-but not false positives, provided that the information about
the guns actually tested has been recorded accurately.
Mikos contends that “the practice of matching spent
bullets to a make and model gun” does not satisfy Rule 702, but the
expert did not testify that bullets with such-and-such rifling must
have come from a particular model of gun, let alone from a specific
weapon. That would indeed overstate what is to be learned from the
database. See Adina Schwartz, A Systemic Challenge to the Reliability
and Admissibility of Firearms and Toolmark Identification, 6 Colum.
Sci. & Tech. L.Rev. 2 (2005). Tangren's testimony reliably applied
the data for the purpose of saying that the rifling on the bullets did
not rule out a Herbert Schmidt Deputy Combo revolver. That testimony,
even with so limited a force, was relevant under Fed.R.Evid. 401 (Mikos
likely would have been acquitted had the database shown that none of
his guns could have been used to kill Brannon), and reliable given its
limitations. The district court did not abuse its discretion in
denying Mikos's request to exclude the evidence under Fed.R.Evid. 403
as unduly prejudicial. The jury was entitled to hear Tangren's
4. Having allowed Tangren to testify, Mikos insists,
the judge should have granted his motion to hire ballistics expert
David LaMagna at public expense. Both the Constitution, see Ake v.
Oklahoma, 470 U.S. 68, 105 S.Ct. 1087, 84 L.Ed.2d 53 (1985), and the
Criminal Justice Act, see 18 U.S.C. § 3006A(e)(1), entitle defendants
to the services of experts necessary to meet the prosecution's case.
The projected expense to retain LaMagna, at $250 an hour, would have
exceeded the presumptive ceiling for an expert's services ($7,500, see
18 U.S.C. § 3599(g)(2), since this is a capital case), and the
district court told Mikos that he would approve another ballistics
expert whose rates were lower, or whose travel time would have been
less. (Experts bill for their travel; that's one reason why
LaMagna's total fees would have exceeded the cap.) Mikos asked the
court to let him hire John R. Nixon in lieu of LaMagna. The court
gave its permission. Nixon examined the bullets and prepared a
report-but the defense did not put Nixon on the stand or use his
report as evidence. (It did proffer an unreasoned statement by Nixon
that “there can be no guaranty of consistency of land & groove
measurements between crime laboratories” and that “suspect data [therefore]
must have found its way into” the FBI's database, but these assertions
did not respond to any issue in the case-and, given the absence of
reasoning, the statement was not admissible.)
Mikos's appellate argument that the district judge
should have let him hire LaMagna is a dud. Abstract propositions
about entitlement to expert assistance go nowhere when the defendant
had an expert. Mikos does not tell us what LaMagna could have done
that Nixon was unable to do; for that matter, he does not tell us why
he did not use Nixon as an expert. Nixon could have relied not only
on his own work but also on LaMagna's published work, which critiques
using ballistics data to make unique matches of bullets to guns (something
that, to repeat, Tangren did not do). See Joan Griffin & David
LaMagna, Daubert Challenges to Forensic Evidence: Ballistics Next on
the Firing Line, 26 Champion 20 (Sept./Oct.2002). Champion, a glossy
publication for the defense bar, is not exactly a scholarly journal,
and this short article was not refereed, but an expert still could
have relied on it to the extent that it contained useful information
about the FBI's rifling-characteristics database. See Fed.R.Evid.
For all we know, Nixon ended up agreeing with
Tangren, and perhaps LaMagna would have done so too. Neither the
Constitution nor the Criminal Justice Act entitles a defendant to the
best (or most expensive) expert, or to more than one expert if the
first does not reach a conclusion favorable to the defense. Just as
a defendant who relies on counsel at public expense must accept a
competent lawyer, rather than Clarence Darrow, see Morris v. Slappy,
461 U.S. 1, 103 S.Ct. 1610, 75 L.Ed.2d 610 (1983), so a defendant who
relies on public funds for expert assistance must be satisfied with a
competent expert. Mikos does not argue that Nixon was incompetent (or
even below average), so he has received his due.
5. Mikos wanted a jury-selection expert as well as
a ballistics expert. The district judge turned him down flat on this
second request, observing that the Criminal Justice Act and § 3599 (21
U.S.C. § 848(q) until its recodification in 2006) provide for experts
on issues that affect guilt and sentencing. As far as we can tell,
no district court (and certainly no court of appeals) has held that
there is a statutory or constitutional entitlement to a jury-selection
expert at public expense.
The Constitution entitles every defendant to a fair
trial before an unbiased jury. The function of a jury-selection
expert, however, is to bias the jury in his employer's favor.
Whether this is a genuine field of expertise is open to doubt; some
studies conclude that people who use jury-selection experts do no
better (and may do worse) than those who do not. See Michael O.
Finkelstein & Bruce Levin, Clear Choices and Guesswork in Peremptory
Challenges in Federal Criminal Trials, 160 J. Royal Statistical
Society A 275 (1997); Hans Zeisel & Shari Seidman Diamond, The Effect
of Peremptory Challenges on Jury and Verdict: An Experiment in a
Federal District Court, 30 Stan. L.Rev. 491 (1978). No matter.
There is no right to an expert whose goal is to produce jurors who
favor one side, and whose leanings (doubtless slight, or they would
not take expertise to ferret out) are undetectable to the other side,
and thus will not lead to challenges for cause or peremptory strikes.
Perhaps one could put a better face on this and say
that the goal of a jury-selection expert is to find and expose those
subtle signs of bias in the venire that might elude counsel (and the
district judge) unless detected in a scientific manner. If a
prosecutor retains a jury-selection expert, a defendant might be able
to show the need for one to level the playing field. But the
prosecutor did not use a jury-selection expert in this case, and Mikos
was not entitled to one. That could only lead to an arms race, and a
race to introduce concealable biases into juries is not one that
should be waged. See Miller-El v. Dretke, 545 U.S. 231, 266-73, 125
S.Ct. 2317, 162 L.Ed.2d 196 (2005) (Breyer, J., concurring); Batson
v. Kentucky, 476 U.S. 79, 102-03, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986)
(Marshall, J., concurring).
6. One final issue before we turn to the sentences.
Mikos submits that the evidence was insufficient to support the
jury's verdict that he murdered Brannon. No one saw him do it; the
gun was not found; the killer left no fingerprints. And what was
his motive?, counsel inquires. True, Mikos wanted to stay out of
jail for Medicare fraud, but his lawyer observes that Mikos had
submitted bogus claims on behalf of so many patients that he could not
possibly have thought that he could silence them all. But he didn't
need to. It would have been enough to silence the patients whose
evidence or testimony had been sought. Mikos set out to do just that-by
persuasion, by submitting forged affidavits in the patients' names,
and, the jury could conclude, by killing the one mentally competent
patient who had made it clear that she would assist the prosecutors.
Mikos may have been deluded (or desperate) in thinking that, if he
could prevent an initial batch of patients from producing evidence of
fraud, then the investigation would be called off-for, by the time the
grand jury started issuing subpoenas, agents had inspected his books
and concluded that all of his bills had been fabricated-but as long as
Mikos thought that he could divert the investigators to easier targets
he had a motive.
As for the lack of witnesses and fingerprints: The
opening paragraphs of this opinion say all that is necessary. The
evidence, though circumstantial, is damning. Alternative
explanations, such as a burglary that went awry, are implausible; nothing
was taken from (or even disturbed in) Brannon's apartment. Jurors
learned that Mikos had been purchasing guns in quantity; agents found
not only a storage unit full of weapons but also more guns in the
ceiling tiles of his home, and still more hidden under his rafters.
A sensible jury could find beyond a reasonable doubt that Mikos shot
Brannon in cold blood, with premeditation, to prevent her from
testifying against him.
1. On the 24 non-capital convictions, Mikos
received sentences of 60 months' imprisonment on each of 15 counts,
and 78 months' imprisonment on each of the 9 remaining counts. All
24 sentences run concurrently and include restitution of $1.8 million.
Mikos contends that the district court overestimated the Medicare
program's financial loss and as a result set the imprisonment and
restitution too high.
During sentencing, Mikos's lawyer conceded that his
total bills to the Medicare program were approximately $1.8 million.
This led to a 16-level increase in his offense score under U.S.S.G.
§ 2B1.1(b)(1)(I) (range from $1 million to $2.5 million). That
concession is not dispositive, Mikos now contends, because Medicare
might not have paid all of these claims, and some of them may have
been legitimate. Whether Medicare paid is irrelevant to the loss
calculation under § 2B1.1, however, because that section deals with
intended loss. Mikos billed the Medicare program for $1.8 million; that's
the intended loss whether Medicare paid or not-unless some of the
claims were legitimate. But the evidence shows that not one penny
was payable. Mikos's appellate lawyer confuses legitimate services
with legitimate claims. Mikos doubtless provided his patients with
many services, such as removing ingrown toenails, but none of these
routine services is covered by the Medicare program. He billed
Medicare for podiatric surgery, and the record shows that he never
performed any surgery. Thus all of the claims for payment from the
Medicare program were illegitimate and the intended loss was $1.8
Restitution is a different matter. It depends on
actual rather than intended loss. See, e.g., United States v. Webber,
536 F.3d 584, 601-04 (7th Cir.2008); United States v. Caputo, 517
F.3d 935, 943 (7th Cir.2008); United States v. George, 403 F.3d 470,
474 (7th Cir.2005). It should have been a simple matter for the
prosecution to show how much the Medicare program actually paid on
Mikos's claims, but that evidence is not in the record. The burden
of showing loss is on the prosecutor, so the award of restitution is
vacated and must be recalculated on remand.
2. According to Mikos, the Federal Death Penalty
Act, 18 U.S.C. §§ 3591-98, is unconstitutional because it violates the
Indictment Clause of the fifth amendment (the Attorney General, not a
grand jury, determines whether to seek capital punishment for a
qualifying offense, and the statute does not require aggravating
factors to be included in an indictment), because failure to apply the
Federal Rules of Evidence and use of hearsay in sentencing violate the
due process clause, and because the statutory aggravating factors are
incomprehensible. These three arguments against the statute have
been made in this circuit, and in others, to no avail.
The Indictment Clause argument has been made and
rejected in United States v. Robinson, 367 F.3d 278, 290 (5th
Cir.2004); United States v. Allen, 406 F.3d 940, 949 (8th Cir.2005)
(en banc); and United States v. Brown, 441 F.3d 1330, 1367 (11th
Cir.2006). The argument about evidence has been made and rejected in
many circuits. See, e.g., United States v. Corley, 519 F.3d 716,
723-27 (7th Cir.2008); United States v. Fulks, 454 F.3d 410, 438 (4th
Cir.2006). The Supreme Court held in Williams v. New York, 337 U.S.
241, 69 S.Ct. 1079, 93 L.Ed. 1337 (1949), that the Constitution does
not require application of the rules of evidence in capital sentencing,
and in all the ferment about capital punishment in the years since
then the Court has never suggested any inclination to overrule
Williams. See Wiggins v. Smith, 539 U.S. 510, 536-37, 123 S.Ct.
2527, 156 L.Ed.2d 471 (2003). The vagueness argument has been made and
rejected in United States v. Webster, 162 F.3d 308, 354 (5th
Cir.1998), among others. After Jones v. United States, 527 U.S. 373,
119 S.Ct. 2090, 144 L.Ed.2d 370 (1999), rejected a functionally
identical vagueness challenge, there is no room for maneuver. We
rely on these decisions and see no constitutional reason why Mikos
cannot be sentenced to death for his premeditated murder of a witness.
Only the indictment question calls for even brief
comment. Walton v. Arizona, 497 U.S. 639, 110 S.Ct. 3047, 111 L.Ed.2d
511 (1990), held that aggravating factors that make a person eligible
for capital punishment are sentencing considerations that need not be
alleged in an indictment. The Federal Death Penalty Act, enacted in
1994, assumed that Walton is correct and does not require aggravating
factors to appear in the indictment. But in 2002 the Supreme Court
overruled Walton and held that aggravating factors that make a crime
death-eligible (though not those used in a later balancing procedure,
see United States v. Fell, 531 F.3d 197, 238-40 (2d Cir.2008) (collecting
cases)) must be charged in the indictment. See Ring v. Arizona, 536
U.S. 584, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002), a decision much
influenced by Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348,
147 L.Ed.2d 435 (2000). The indictment of Mikos includes several
aggravating factors. All requirements of Ring and Apprendi have been
Nonetheless, Mikos insists that the statute must be
declared unconstitutional because it does not demand that the grand
jury find the aggravating factors. He then contends that the statute
is not severable, so that to find one constitutional flaw is to knock
out the basis of all capital punishment. The argument goes wrong at
the first step (and we need not decide whether the severability step
is wrong as well), because Ring does not hold or imply that any part
of the Federal Death Penalty Act is unconstitutional.
Ring does say that the Constitution demands that
certain things be in an indictment if a capital sentence is to be
valid, but the federal statute does not forbid aggravating factors in
an indictment. It is silent on whether they are included. If the
indictment complies with Ring, no constitutional error occurs. There
is nothing to sever. As long as a defendant's rights under Ring are
honored (as Mikos's were), it is a matter of indifference whether the
rights were honored as a matter of statutory command or prosecutorial
precaution. We have held much the same thing for 21 U.S.C. § 841.
Defendants argued after Apprendi that § 841 is unconstitutional
because it does not require drug quantities to be charged in
indictments. We held, to the contrary, that § 841 is silent on the
subject, and that prosecutors are free to include all allegations
needed to comply with Apprendi. Putting in the indictment more than
the statutory floor does not imply that any law is unconstitutional.
See United States v. Brough, 243 F.3d 1078 (7th Cir.2001). Cf.
United States v. Cotton, 535 U.S. 625, 122 S.Ct. 1781, 152 L.Ed.2d 860
Just so with the Federal Death Penalty Act. Title
18 says what must be proved, and sometimes it says how; other sources,
including the Constitution, the Federal Rules of Criminal Procedure,
and the common law, add details about which tasks fall to prosecutors,
judges, grand juries, and petit juries. That one source of law is
silent on a procedural issue, such as what an indictment must contain,
just leaves it to another source. Look at 18 U.S.C. § 1347, the
Medicare-fraud statute that Mikos has been convicted of violating.
There is not a peep in § 1347 (or almost any other statute) about what
must be in an indictment, but no one would say that this makes the
whole Criminal Code a rollicking violation of the Indictment Clause.
Other sources of law supply details about what indictments (and other
legal documents) contain, so that defendants' constitutional rights
are fully respected.
3. The Federal Death Penalty Act provides that, if
a defendant is convicted of a capital crime and the prosecutor
requests the death penalty, a jury must decide at a sentencing
proceeding whether the accused had the necessary mental state and at
least one aggravating factor exists. If the jury unanimously answers
both of these questions in the affirmative, see § 3593(d), it must
balance all considerations to determine whether capital punishment is
appropriate. We call these “considerations” rather than “factors”
because, although there is a statutory list of “factors” that a jury
must consider (if raised by a party), there is no limit to the number
of case-specific (“non-statutory”) considerations that may influence a
The two statutory aggravating factors were that
Mikos substantially planned and premeditated the murder, § 3592(c)(9),
and that Brannon was “particularly vulnerable due to ․ infirmity”,
§ 3592(c)(11). Brannon had retired from nursing because she had
become so obese that she needed assistance to rise from a chair. (She
had other conditions commonly associated with obesity.) She could
not have run away or resisted an intruder. The jury found both of
these aggravating factors unanimously and beyond a reasonable doubt.
It also found three non-statutory aggravating considerations. One
was that Mikos killed Brannon to prevent her from testifying against
him. The second was that the crime caused loss to Brannon's friends,
family, and co-workers. The third was that Mikos had not
demonstrated remorse for his crimes. All of these were found
unanimously, and beyond a reasonable doubt.
Mikos asked the jury to find 33 mitigating
considerations. Several of these drew majority support. Eight
members of the jury concluded, for example, that “Ronald Mikos has a
loving relationship with his son, Ronald Mikos, Jr.”; nine jurors
concluded that Mikos's execution would cause his son “great pain and
emotional distress.” (A majority did not make similar findings for
Mikos's other children.) A single juror concluded that Mikos's
substance abuse had led to mental disorders that were mitigating (he
submitted evidence that he began abusing prescription painkillers in
the mid 1990s and began drinking heavily in 2001.) Two jurors
concluded that the civil investigations into Mikos's fraud had caused
him stress and led to drug and alcohol abuse, which was a mitigating
consideration. Five jurors concluded that the delay in completing
the civil investigation was a mitigating consideration. But only
four jurors supported the statement: “Ronald Mikos is a human being.”
After making all of these findings, the jurors
voted unanimously that Mikos be executed for killing Joyce Brannon.
Mikos contests two of the five aggravating factors
or considerations: vulnerable victim and lack of remorse. We begin
with the first of these, because it is one of the two statutory
aggravating factors that the jury found. (The non-statutory
aggravating circumstances are less important.) The prosecutor
contends that some of Mikos's arguments on sentencing have been
forfeited because counsel did not make the appropriate objection at
the appropriate time, but we consider all of the appellate arguments
on the merits lest we see them again in the guise of a contention that
Mikos received ineffective assistance of counsel, despite the diligent
work done on his behalf.
a. Mikos might perhaps have argued that six well-placed
bullets will kill anyone, so vulnerability cannot be in issue, but he
does not take that line. Brannon was vulnerable, not because she was
especially susceptible to bullets, but because she was immobile and
could neither run nor fight back when an intruder broke into her
apartment. Nor could she seek help in whatever period of
consciousness remained to her after the intruder had emptied his gun
into her back and neck, piercing her lungs and severing her carotid
artery. Both United States v. Sampson, 486 F.3d 13, 48-49 (1st
Cir.2007), and United States v. Paul, 217 F.3d 989, 1001-02 (8th
Cir.2000), hold that disabilities making it hard for the victim to
resist or flee support a vulnerable-victim finding under
Our dissenting colleague asserts that Brannon's
disabilities are irrelevant because “[s]he could not have outrun [Mikos's]
bullets even if she had been an Olympic sprinter” (dissent at 721) and
that her doom was sealed once “he was standing behind her” (id. at
721). Mikos himself does not contend this-not in the district court,
and not in this court. Our colleague's position ignores everything
that occurred before Mikos was standing inches from Brannon with a
loaded revolver. If Mikos had killed Brannon with a sniper rifle
from across the street, and the first sign of the attack had been a
bullet in her head, then her disability would indeed be immaterial.
But Mikos instead entered her apartment and walked up to her chair.
She was powerless to escape, because she was unable to rise. Even a
trained user of handguns has trouble hitting a moving target, so had
Brannon been able to run out of her apartment as Mikos entered, she
might be alive today. But she could not rise; her physical
condition made her a sitting duck. That's why Mikos has never
ventured the argument that our dissenting colleague advances. The
standards of plain error, see United States v. Olano, 507 U.S. 725,
733-37, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993), have not been
satisfied. Whether Brannon's obesity contributed to her demise is a
factual question, not a legal question for appellate judges, and the
evidence permitted a rational jury to find as this jury did.
Instead of opposing the vulnerable-victim factor
altogether, Mikos contends that the prosecutor overstepped in one part
of his argument to the jury. A medical examiner testified that
Brannon bled to death (both internal hemorrhaging and loss from the
severed artery) over the course of three or four minutes. In closing
argument the prosecutor asked the rhetorical question “What was [Brannon]
thinking when she sat there for three to four minutes dying? ․ What
was she thinking? She couldn't move, she couldn't cry out, she
couldn't run, and the reason she couldn't do those things was due to
her disability.” This was a plea for sympathy, an appeal to emotions
rather than reason, Mikos maintains. Perhaps Brannon fell quickly
into unconsciousness, but, even if she did not, the argument goes, a
prosecutor should stick to the facts rather than speculate about a
victim's mental processes.
“What was she thinking?” is indeed a bad question
to have asked, even rhetorically, for the reasons Mikos has
articulated. But it is impossible to believe that this brief foray
could have affected the jury's verdict. Missteps during closing
argument are common, because these arguments are unscripted. They
justify a new trial only when they are likely to overwhelm other,
appropriate, considerations. See Darden v. Wainwright, 477 U.S. 168,
179-83, 106 S.Ct. 2464, 91 L.Ed.2d 144 (1986). Here the jury's
attention was focused by judge and counsel alike on the right question:
whether Brannon's obesity hindered her ability to resist or flee.
The jury's verdict is reliable.
b. Mikos challenges the lack-of-remorse
consideration on two fronts. He contends that prosecutorial
statements about Mikos's remorse-free demeanor in court amount to a
penalty for his failure to testify. And he maintains that the
evidence did not support this factor. Relying on United States v.
Roman, 371 F.Supp.2d 36 (D.P.R.2005), he argues that only gloating or
boastfulness, after the fashion of Leopold and Loeb, show a meaningful
“lack of remorse.”
There is a sense in which “lack of remorse”
overlaps with “the defendant did not plead guilty”, but the Supreme
Court has approved this factor, see Zant v. Stephens, 462 U.S. 862,
886 n. 22, 103 S.Ct. 2733, 77 L.Ed.2d 235 (1983), which differs in
principle from a penalty for failure to incriminate oneself. It is
common, and acceptable, to give lower sentences to persons who confess
and show remorse than to persons who do not; the Sentencing
Guidelines institutionalize this with a two-level or three-level
reduction for acceptance of responsibility. U.S.S.G. § 3E1.1. Mikos
fought every charge every step of the way. That was his right, but
in the process he showed no remorse, compared with a person who
conceded some culpability (if only on the fraud charges, which were
indisputable). If it is proper to take confessions, guilty pleas,
and vows to improve one's life into account when deciding whether a
murderer should be put to death-and it is unquestionably proper for a
judge or jury to do so, see Williams v. Taylor, 529 U.S. 362, 398, 120
S.Ct. 1495, 146 L.Ed.2d 389 (2000)-then it must also be proper for the
prosecutor to remind the jury when none of these events has occurred.
The consequence of no remorse is built into the Guidelines, see
United States v. Klotz, 943 F.2d 707 (7th Cir.1991); in a capital
case, by contrast, nothing is built in, so what happens automatically
as a result of § 3E1.1 must be argued for. The two are equally
The prosecutor's main theme was not the absence of
a guilty plea, or Mikos's silence (= the lack of an apology) in open
court, but the fact that Mikos had not done anything to reduce or
redress the hurt his crimes had caused. He had not, for example,
covered the costs of Brannon's burial, leaving these to her family and
her church. Instead of taking steps to make good the losses for
which he was responsible, Mikos has used his free time in jail to try
to swindle the Medicare fund out of more money. He sent off
documents asking that payment be made to a differently named entity at
a different address, hoping that this would evade administrative
orders forbidding payment to the name of his medical practice on file
with the bureaucracy. He continued contacting prospective witnesses
and attempting to persuade them to keep silent or to tell lies on his
behalf. Someone who carries on with crime, even after being caught
and imprisoned, can be called remorseless without stretching the term.
He is both more dangerous and less capable of incapacitation by
imprisonment than is someone who genuinely regrets his misdeeds.
Remorse means regret and contrition. Roman surely
is right to say that bragging about one's criminal escapades shows
lack of remorse, but it is mistaken to say that this is the only way
to show the absence of remorse. Letting victims bear the loss of
crime, while trying to tamper with witnesses to escape conviction and
commit more wrongs, also signal lack of remorse, and that
demonstration was made here. The jury convicted Mikos of obstructing
justice, not just of fraud and murder.
But let us suppose that this is wrong and that lack
of remorse has not been made out as a valid non-statutory aggravating
consideration. Lack of remorse is a non-statutory consideration; it
did not play a role in making Mikos eligible for the death penalty.
The Supreme Court held in Brown v. Sanders, 546 U.S. 212, 126 S.Ct.
884, 163 L.Ed.2d 723 (2006), that when an aggravating consideration
other than one essential to death-eligibility is set aside, the
sentence still may be affirmed if all of the evidence that supported
this consideration would have been admitted anyway, or if the court
conducts an independent review and concludes that the verdict remains
appropriate without the invalid consideration. Brown arose on
collateral review of a state court's judgment, but most of what Brown
says concerns how an appellate court should proceed on direct review
of a death sentence and hence is equally applicable within the federal
system. The Court's opinion in Jones, 527 U.S. at 402-05, 119 S.Ct.
2090, arises from direct review of a federal death sentence and
reaches a similar conclusion, holding that a federal court of appeals
may declare an error concerning an aggravating consideration harmless
if the judges are convinced that the jury would have returned the same
verdict had the invalid aggravating consideration not been submitted
Mikos does not contend that the “lack of remorse”
consideration put before the jury any evidence that it ought not have
received. Most of Mikos's contentions address the prosecutor's
closing argument, which came after all of the evidence. The jury was
entitled to learn about Mikos's efforts to continue collecting from
Medicare (that was relevant to the substantive charges, and the
evidence came in during the trial on the merits) and his efforts to
influence witnesses from prison (ditto: this was relevant to several
of the substantive counts). Mikos's demeanor in court-whether he was
stony-faced or teary-eyed-was already known to the jurors.
So all we have is the prosecutor's argument about
lack of remorse. Take away those few pages of transcript, and the
weight of evidence remains. Four aggravating factors or
considerations are solid. The facts of this cold-blooded execution
of a potential witness dominate. Prosecutorial comments about
Mikos's demeanor in court and lack of visible remorse strike us, and
likely struck the jurors, as gilding the lily. Many a problem in a
criminal prosecution is caused by such rhetorical excesses.
Prosecutors cannot know what will carry weight with jurors, so they
are tempted to try every avenue. When they do, that opens the door
to claims of error and appellate second-guessing. That's why the
doctrine of harmless error is essential. If error occurred in this
penalty proceeding, it was harmless.
Affirmed on all subjects except restitution, which
I agree that the defendant's conviction should be
upheld and I join that part of the majority opinion. But he is
entitled to a new death-penalty hearing. The prosecutor was not
content to point out that the murder was the result of “substantial
planning and premeditation to cause the death of a person or commit an
act of terrorism,” which the Federal Death Penalty Act explicitly
allows the jury to deem a factor entitling it to impose the death
penalty. 18 U.S.C. § 3592(c)(9). He also argued that the victim
“was particularly vulnerable due to old age, youth, or infirmity,”
another explicit statutory factor, § 3592(c)(11), and that (under the
radically unspecific statutory catch-all-“any other aggravating factor
[that is, any other factor, besides those specified in the statute,
that a jury can treat as a reason for sentencing the defendant to
death] for which notice has been given,” § 3592(c) following (16)) the
defendant had shown a lack of remorse for the murder. The prosecutor
advanced two other nonstatutory factors as well: that the defendant
had killed his victim to prevent her from testifying against him, and
that the murder had caused emotional harm to the victim's family and
friends; but these add little to the fact that the victim was killed
and the murder planned.
The prosecutor's arguments based on victim
vulnerability and the defendant's lack of remorse were unsound, and I
do not think it is possible to find beyond a reasonable doubt (the
applicable standard, 18 U.S.C. § 3595(c)(2)) that the jury would have
sentenced the defendant to death even if those arguments had not been
made. There is much fussing in the briefs over the defendant's
failure to object to the arguments, but that misses the point. Even
if there was nothing wrong with the prosecutor's making the arguments,
they don't provide a basis for a finding beyond a reasonable doubt
that the victim was vulnerable or that the defendant lacked remorse.
Vulnerability is relative to the nature of the
crime. United States v. Sampson, 486 F.3d 13, 48-49 (1st Cir.2007).
A closeted homosexual is particularly vulnerable to being blackmailed,
United States v. Lallemand, 989 F.2d 936, 939 (7th Cir.1993); United
States v. Hughes, 411 F.2d 461, 462-63 (2d Cir.1969), but he is not
particularly vulnerable to credit-card fraud. The fact that the
victim in this case was a 5-foot 3-inch woman who weighed nearly 300
pounds might have made her particularly vulnerable to solicitations
for fraudulent weight-loss programs, to mugging, and to a variety of
other crimes, but not to being shot to death in her apartment. In
Sampson, the victim was fleeing from a knife-wielding assailant and
might have escaped had it not been that he had “undergone open-heart
surgery (a quintuple bypass) approximately one year prior to his
encounter with Sampson; that he was overweight and became short of
breath easily; and that he had difficulty walking fifteen feet
shortly before his murder.” 486 F.3d at 49. In United States v.
Paul, 217 F.3d 989, 1001-02 (8th Cir.2000), the victim was 83 years
old and the court thought he might have escaped or beaten off his
attackers had he been younger. This case, in contrast, is like
United States v. Johnson, 136 F.Supp.2d 553, 560 (W.D.Va.2001), where
“the victim was killed instantaneously when the explosive device
detonated. Nothing about [her] physical condition weakened her
capacity to resist the fatal blast.” See also Francis v. State, 808
So.2d 110, 139 (Fla.2001).
It is true that the younger and stronger the
intended victim of a shooting, the more likely he is to be able to
resist effectively or survive his wounds. But if this argument is
pressed hard enough, everyone over 50 would be deemed a vulnerable
victim in any case involving the use of force. Vulnerability must be
assessed on the basis of the relation of the victim's condition to the
particular circumstances of the crime, Jones v. United States, 527 U.S.
373, 401-02, 119 S.Ct. 2090, 144 L.Ed.2d 370 (1999), as in United
States v. Johnson, supra.
So although the judge properly instructed the jury
that the government had to prove beyond a reasonable doubt that “any
infirmity which you find made [the victim] particularly vulnerable
must somehow have contributed to her death,” see United States v.
Sampson, supra, 486 F.3d at 34, missing from this case is evidence
that the victim's vulnerability did contribute to her death-evidence
that a healthier victim might have survived being shot six times in
the back at point-blank range or that the defendant would not have
tried to kill her had she been healthier because he would have been
afraid that she would grab the gun from him. The government lawyer
did speculate at the argument in this court that had the victim been
of normal weight she might have grabbed the gun from the defendant's
grasp, but that is fanciful in the extreme, especially as he was
standing behind her.
I do not mean to understate the victim's disability
caused by her obesity. She had difficulty getting up from a sitting
position and needed canes for walking, and she used a catheter because
she had trouble getting to the bathroom in time when she had to
urinate. She had rolls of abdominal fat hanging down so low that
they were at the level of her knees, and the fat had become infected
and had required surgery to save her life from an infection. She had
asthma and arthritis and leg cramps and for the accumulation of her
ailments took about 15 medications, some of which caused drowsiness
and fatigue. Although neither singly nor in combination did her
ailments have anything to do with her vulnerability to being shot
fatally from behind at close range, the category of nonstatutory
aggravating factors is open-ended and the prosecutor could have argued
that to kill a person already so afflicted was especially cruel and
ugly, like the “brutal and senseless execution style murder of a
helpless child” in Black v. Bell, 181 F.Supp.2d 832, 863 (M.D.Tenn.2001).
There are intimations of such an argument in the prosecutor's
closing statement to the jury, but he did not ask the jury to consider
this as a factor in aggravation of the defendant's conduct; he relied
instead on the statutory factor of vulnerable victim, and that was a
mistake; the average person would not have escaped in this case with
his life. Having studied the church's schedule, the defendant was
able to sneak in when he knew that the victim would be alone. Once
he was inside the church with a gun and determined to kill her, her
death was inevitable, no matter what her physical condition. She
could not have outrun his bullets even if she had been an Olympic
The aggravating factor to which the prosecutor
devoted the bulk of his closing argument was lack of remorse. He
pointed out that after killing his victim the defendant had continued
to engage in the Medicare fraud that had motivated the murder. To
deem that a circumstance in aggravation was double counting. The
murder was a result of substantial planning and premeditation because
it was a means of trying to defeat the fraud prosecution and enable
the defendant to continue engaging in fraud. The planning was an
aggravating factor that entitled the jury in the exercise of its
discretion to sentence him to death, but it was not evidence of a lack
of remorse distinct from any inference of remorselessness that one
would draw from any murder that had been planned rather than being
The prosecutor told the jury that the defendant is
“sitting 20 feet away from you and there's nothing, no remorse
whatsoever, because he thinks he got away with it.” (An echo of Camus:
“And has he uttered a word of regret for his most odious crime? Not
one word, gentlemen. Not once in the course of these proceedings did
this man show the least contrition.” Albert Camus, The Stranger 126
(1954  ).) Later the prosecutor added that the defendant is
“sorry he got caught, but he's not sorry that he shot [the victim].
The only ramification of that as he's sitting opposite you right now,
nothing else in this man's heart, not a single thing. He has no
remorse for what he did.” The only inference the jury could have
drawn (for it was given no guidance by the judge, who said about
remorse only that the government alleged “that defendant has
demonstrated a lack of remorse for his criminal conduct”-which might
have been taken to mean that it could impose the death penalty because
of the defendant's lack of remorse for committing Medicare fraud) was
that his failure to confess to the murder in open court showed that he
lacked remorse. Had he confessed, however, the jury might still have
imposed the death penalty and he would have given away his colorable (though
ultimately unsuccessful) claim that the government had failed to prove
his guilt beyond a reasonable doubt.
It is true that something like this Hobson's Choice
is built into the federal sentencing guidelines for noncapital federal
crimes. Ordinarily, to obtain a sentencing discount for accepting
responsibility for the crime with which one is charged one has to
plead guilty and thus give up the chance to contest guilt. U.S.
Sentencing Guidelines § 3E1.1, Application Notes 2, 3; United States
v. Guadagno, 970 F.2d 214, 226 (7th Cir.1992); United States v.
Escobar-Mejia, 915 F.2d 1152, 1153 (7th Cir.1990); United States v.
Williams, 940 F.2d 176, 183 (6th Cir.1991). But there is a
difference between a defendant's arguing for leniency on the basis of
his admitting to having committed the crime with which he is charged
and the government's asking the jury to draw an inference of
heinousness from his failure to admit that. United States v.
Saunders, 973 F.2d 1354, 1362-63 (7th Cir.1992). In the first case
the government is giving (or, Booker having demoted the sentencing
guidelines to advisory status, recommending that the judge give) the
defendant a break in exchange for his sparing the government the
expense and uncertainty of a trial. In the second case the judge is
asking the jury to infer remorselessness from the defendant's refusal
to acknowledge guilt. Yet the motive for that refusal is likely to
be simply that the defendant thinks he might be acquitted. You can
feel remorse for having committed a crime without wanting to be
punished by life in prison or death. A defendant who accepts
responsibility for his crime is not denied a sentencing discount for
that acceptance on the theory that if he were really contrite he
wouldn't be seeking a lighter sentence-he would reject the acceptance
One could imagine a legislature's dissolving the
difference between a punishment increase for proving lack of remorse
and the denial of a punishment decrease for failing to prove remorse
by deeming failure to prove remorse (a mitigating factor) proof of
lack of remorse (an aggravating factor). But Congress has not done
that. The Federal Death Penalty Act requires proof of an aggravating
factor beyond a reasonable doubt, but proof of a mitigating factor by
a mere preponderance of the evidence. As the Supreme Court explained
in McMillan v. Pennsylvania, 477 U.S. 79, 100-01, 106 S.Ct. 2411, 91
L.Ed.2d 67 (1986) (citations omitted), “the distinction between
aggravating and mitigating facts has been criticized as formalistic.
But its ability to identify genuine constitutional threats depends on
nothing more than the continued functioning of the democratic process.
To appreciate the difference between aggravating and mitigating
circumstances, it is important to remember that although States may
reach the same destination either by criminalizing conduct and
allowing an affirmative defense, or by prohibiting lesser conduct and
enhancing the penalty, legislation proceeding along these two paths is
very different even if it might theoretically achieve the same result.
Consider, for example, a statute making presence ‘in any private or
public place’ a ‘felony punishable by up to five years imprisonment’
and yet allowing ‘an affirmative defense for the defendant to prove,
to a preponderance of the evidence, that he was not robbing a bank.’
No democratically elected legislature would enact such a law.”
What would demonstrate a lack of remorse would be
statements (such as bragging about the murder), gestures, laughter as
the murder was described or a grieving relative testified, or facial
expressions that indicated that the defendant had indeed no regret
about having committed the murder. And thus in Emmett v. Kelly, 474
F.3d 154, 170 (4th Cir.2007), “when questioned about the circumstances
leading up to the murder, Emmett told the police that [his victim] was
‘an asshole’ who ‘wouldn't loan me no money,’ and that it ‘just seemed
right at the time,’ demonstrating a lack of remorse and callous
disregard for human life similar to that demonstrated in the wake of
his killing of the motorcyclist a few years prior.” See also Thomas
v. Gilmore, 144 F.3d 513, 514 (7th Cir.1998); Coble v. Quarterman 496
F.3d 430, 438 (5th Cir.2007); United States v. Roman, 371 F.Supp.2d
36, 48, 50-51 (D.P.R.2005).
Mere silence is not enough to demonstrate lack of
remorse. Nor failure to take extraordinary efforts to demonstrate
remorse, such as paying for the victim's funeral expenses. Such a
failure might defeat the defendant's effort to plead remorse as a
mitigating factor; but the absence of a mitigating factor cannot
automatically be converted to the presence of an aggravating one.
Psychologists who set out to study lack of remorse
among prisoners proceeded as follows: “Lack of remorse was
operationalized as either (a) a negative answer to a question
concerning whether the respondent ever regretted having destroyed or
stolen property, or mistreated or harmed another person, or wished
these major violations of the rights of others had never happened; or
(b) an affirmative answer to a question concerning whether the
respondent felt he or she had the right to do the behavior(s), or that
the people affected by the behavior(s) deserved what they got.” Risë
B. Goldstein, et al., “Lack of Remorse in Antisocial Personality
Disorder: Sociodemographic Correlates, Symptomatic Presentation, and
Comorbidity With Axis I and Axis II Disorders in the National
Epidemiologic Survey on Alcohol and Related Conditions,” 47
Comprehensive Psychiatry 289, 291 (2006); see also Martha Grace
Duncan, “ ‘So Young and So Untender’: Remorseless Children and the
Expectations of the Law,” 102 Colum. L.Rev. 1469, 1491-92 (2002).
No effort to do that was made in this case. It would have helped had
the prosecutor or the judge (or for that matter the defendant's lawyer)
told the jury what “remorse” means and how its presence or absence can
be determined. They did not.
Not every premeditated murderer is sentenced to
death, see, e.g., Carmichael v. State, 340 Ark. 598, 12 S.W.3d 225
(2000); Schoels v. State, 114 Nev. 981, 966 P.2d 735 (1998); People
v. Poindexter, 144 Cal.App.4th 572, 50 Cal.Rptr.3d 489 (2006)-quite
the contrary. The force of 18 U.S.C. § 3592(c)(9) is not in the word
“premeditation” but in the phrase “substantial planning”-yet not all
murderers who plan their murders well in advance are sentenced to
death either. See, e.g., United States v. Russell, 971 F.2d 1098,
1103-04 (4th Cir.1992); People v. St. Joseph, 226 Cal.App.3d 289, 276
Cal.Rptr. 498, 500-01 (1990). Without the aggravating factors found
by the jury in this case, it is uncertain whether the defendant would
have been sentenced to death. In one study, 39.8 percent of jurors
in capital cases said that a lack of remorse either made them or would
have made them more likely to vote to impose the death penalty.
Stephen P. Garvey, “Aggravation and Mitigation in Capital Cases: What
Do Jurors Think?,” 98 Colum. L.Rev. 1538, 1560-61 (1998). A study by
Theodore Eisenberg et al., “But Was He Sorry? The Role of Remorse in
Capital Sentencing,” 83 Cornell L.Rev. 1599, 1633 (1998), found that
lack of remorse was the third most powerful aggravating factor in
capital sentencing. See also Scott E. Sundby, “The Capital Jury and
Absolution: The Intersection of Trial Strategy, Remorse, and the
Death Penalty,” 83 Cornell L.Rev. 1557, 1560 (1998); William S.
Geimer & Jonathan Amsterdam, “Why Jurors Vote Life or Death: Operative
Factors in Ten Florida Death Penalty Cases,” 15 Am. J.Crim. L. 1,
40-41 (l987-1988). “In a capital sentencing proceeding, assessments
of character and remorse may carry great weight and, perhaps, be
determinative of whether the offender lives or dies.” Riggins v.
Nevada, 504 U.S. 127, 144, 112 S.Ct. 1810, 118 L.Ed.2d 479 (1992) (concurring
EASTERBROOK, Chief Judge.
The victim, Joyce Brannon, 54, a nurse.