539 F.3d 706 (7th Cir. 2008), 06-2375, United States v. Mikos

Docket Nº:06-2375, 06-2376, 06-2421.
Citation:539 F.3d 706
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. Ronald MIKOS, Defendant-Appellant.
Case Date:August 25, 2008
Court:United States Courts of Appeals, Court of Appeals for the Seventh Circuit
 
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Page 706

539 F.3d 706 (7th Cir. 2008)

UNITED STATES of America, Plaintiff-Appellee,

v.

Ronald MIKOS, Defendant-Appellant.

Nos. 06-2375, 06-2376, 06-2421.

United States Court of Appeals, Seventh Circuit.

August 25, 2008

Argued Aug. 16, 2007.

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[Copyrighted Material Omitted]

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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.

Before EASTERBROOK, Chief Judge, and POSNER and EVANS, Circuit Judges.

EASTERBROOK, Chief Judge.

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

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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.

I

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.,

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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 about.

3.

The power of the inference from the...

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