## Facts

- Ronald Mikos, a podiatrist, billed Medicare for thousands of surgeries that were not performed; patients largely received routine, non-covered care.
- To support false claims, Mikos induced some elderly or impaired patients to sign affidavits asserting surgeries occurred; other affidavits were written by Mikos and signed by forgery.
- A longtime secretary testified Mikos performed no surgeries during her employment; specialists found no signs of surgery on examined patients.
- After a grand jury subpoenaed several patients, Mikos contacted them to discourage testimony; none appeared before the grand jury.
- Joyce Brannon, a cooperating witness, was found shot multiple times at close range with .22-caliber ammunition.
- The government’s case tied Mikos to the killing through motive (silencing a cooperating witness), circumstantial evidence placing him near the church, and firearms evidence consistent with a .22 revolver Mikos had owned but that later disappeared.
- Investigators searched Mikos’s storage unit under a delayed-notice warrant and later under a conventional warrant, obtaining evidence supporting fraud and obstruction charges.
- A jury convicted Mikos of murdering a witness to prevent testimony (18 U.S.C. § 1512(a)(1)(A)) and multiple counts of mail fraud, health care fraud, obstruction, attempted grand jury influence, and witness tampering (18 U.S.C. §§ 1341, 1347, 1503, 1505, 1512(b)(1)).
- The jury returned a death sentence on the witness-murder count; the court also imposed concurrent prison terms on other counts and ordered restitution of roughly $1.8 million.

## Issues

1. Whether the delayed-notice search and subsequent search of Mikos’s storage unit violated the Fourth Amendment, requiring suppression of resulting evidence.
2. Whether the prosecutor’s argument inviting an inference of guilt from the missing .22 revolver violated the Fifth Amendment privilege against self-incrimination.
3. Whether the district court abused its discretion under Federal Rule of Evidence 702 by admitting ballistics expert testimony.
4. Whether an indigent capital defendant was entitled to publicly funded assistance from a jury-selection expert and to a specific, higher-cost forensic expert.
5. Whether the evidence was sufficient to support conviction for witness murder under 18 U.S.C. § 1512(a)(1)(A) and the resulting death sentence.
6. Whether restitution was properly calculated, or instead had to be based on proven actual loss.

## Decision

- The court affirmed all convictions, including the witness-murder conviction under 18 U.S.C. § 1512(a)(1)(A).
- The court affirmed the death sentence.
- The court rejected suppression challenges to the storage-unit evidence, concluding the later conventional warrant and inevitable-discovery principles defeated exclusion.
- The court held the prosecutor could argue an inference from the missing firearm as circumstantial evidence without commenting on Mikos’s silence.
- The court upheld admission of the ballistics testimony, finding no abuse of discretion under Rule 702.
- The court held Mikos was entitled to necessary, competent expert assistance, not a preferred expert exceeding statutory limits, and that denial of a jury-selection expert was not error.
- The court vacated the restitution amount and remanded for recalculation based on evidence of actual loss.

## Legal Principles

- Evidence need not be suppressed when a later valid warrant and inevitable discovery establish that the challenged seizure would have occurred lawfully.
- Prosecutors may argue adverse inferences from physical or circumstantial evidence (including a missing weapon) without violating the Fifth Amendment, so long as the argument is not framed as a penalty for the defendant’s failure to testify.
- Under Rule 702, trial courts have broad discretion in admitting forensic expert testimony when reliability and relevance are reasonably supported; weaknesses generally go to weight, not admissibility.
- Publicly funded defense services require what is reasonably necessary for an adequate defense; there is no right to a defendant’s preferred expert or to exceed funding limits absent necessity.
- A jury-selection consultant is not constitutionally required where the defense can conduct voir dire and there is no showing of necessity.
- Restitution in fraud cases must be tied to proven actual loss; estimates untethered to demonstrated loss cannot support the restitution amount.

## Conclusion

The Seventh Circuit upheld Mikos’s fraud, obstruction, and witness-murder convictions and affirmed the death sentence, finding no reversible error in searches, prosecutorial argument, expert admissibility, or funding decisions for defense experts, but remanded because the restitution order had to be recalculated based on evidence of Medicare’s actual loss.


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