In the

United States Court of Appeals

For the Seventh Circuit

____________

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

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

RONALD MIKOS,

Defendant-Appellant.

____________

Appeals from the United States District Court for the

Northern District of Illinois, Eastern Division.

No. 02 CR 137—Ronald A. Guzmán, Judge.

____________

ARGUED AUGUST 16, 2007—DECIDED AUGUST 25, 2008

____________

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

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,
Nos. 06-2375, 06-2376 & 06-2421 3

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, brasscoated 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
4 Nos. 06-2375, 06-2376 & 06-2421

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
Nos. 06-2375, 06-2376 & 06-2421 5

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 (2000) (feeling an opaque

bag to gain information about its contents); Arizona v.

Hicks, 480 U.S. 321 (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 (1984); United States

v. Tejada, 524 F.3d 809 (7th Cir. 2008). Cf. Hudson v. Michigan, 547 U.S. 586 (2006) (exclusion unjustified when the

error is not in the causal chain leading to the evidence).
6 Nos. 06-2375, 06-2376 & 06-2421

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 (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 (1988);

United States v. Sblendorio, 830 F.2d 1382, 1391–92 (7th Cir.

1987).
Nos. 06-2375, 06-2376 & 06-2421 7

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

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 (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.
Nos. 06-2375, 06-2376 & 06-2421 9

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 (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 suchand-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
10 Nos. 06-2375, 06-2376 & 06-2421

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 evidence.

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 (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
Nos. 06-2375, 06-2376 & 06-2421 11

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. 703.

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

relies on counsel at public expense must accept a competent lawyer, rather than Clarence Darrow, see Morris v.

Slappy, 461 U.S. 1 (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 juryselection 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
Nos. 06-2375, 06-2376 & 06-2421 13

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 (2005) (Breyer, J., concurring); Batson v.

Kentucky, 476 U.S. 79, 102–03 (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
14 Nos. 06-2375, 06-2376 & 06-2421

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.

II

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
Nos. 06-2375, 06-2376 & 06-2421 15

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 million.

Restitution is a different matter. It depends on actual

rather than intended loss. See, e.g., United States v. Webber,

No. 07-2117 (7th Cir. July 29, 2008), slip op. 30–38; United

States v. Caputo, 517 F.3d 935, 943 (7th Cir. 2008); United
16 Nos. 06-2375, 06-2376 & 06-2421

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

(1949), that the Constitution does not require application of

the rules of evidence in capital sentencing, and in all the
Nos. 06-2375, 06-2376 & 06-2421 17

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

(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 (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 (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, 2008 U.S.

App. LEXIS 13831 at *105–11 (2d Cir. June 27, 2008) (collecting cases)) must be charged in the indictment. See Ring v.

Arizona, 536 U.S. 584 (2002), a decision much influenced

by Apprendi v. New Jersey, 530 U.S. 466 (2000). The indictment of Mikos includes several aggravating factors. All

requirements of Ring and Apprendi have been satisfied.

Nonetheless, Mikos insists that the statute must be

declared unconstitutional because it does not demand
18 Nos. 06-2375, 06-2376 & 06-2421

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

(2002).

Just so with the Federal Death Penalty Act. Title 18 says

what must be proved, and sometimes it says how; other
Nos. 06-2375, 06-2376 & 06-2421 19

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 jury.

The two statutory aggravating factors were that Mikos

substantially planned and premeditated the murder,

§3592(c)(9), and that Brannon was “particularly vulnerable
20 Nos. 06-2375, 06-2376 & 06-2421

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 nonstatutory 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
Nos. 06-2375, 06-2376 & 06-2421 21

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 nonstatutory 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 §3592(c)(11).
22 Nos. 06-2375, 06-2376 & 06-2421

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 31) and that her doom was sealed once “he was

standing behind her” (id. at 30). 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 (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
Nos. 06-2375, 06-2376 & 06-2421 23

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 (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
24 Nos. 06-2375, 06-2376 & 06-2421

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 (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 twolevel 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

(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 appropriate.

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 any-
Nos. 06-2375, 06-2376 & 06-2421 25

thing 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-
26 Nos. 06-2375, 06-2376 & 06-2421

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 (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, 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 at trial.

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
Nos. 06-2375, 06-2376 & 06-2421 27

demeanor in court—whether he was stony-faced or tearyeyed—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 IS REMANDED.

POSNER, Circuit Judge, concurring in part and dissenting

in part. 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
28 Nos. 06-2375, 06-2376 & 06-2421

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.
Nos. 06-2375, 06-2376 & 06-2421 29

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

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 (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
Nos. 06-2375, 06-2376 & 06-2421 31

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 sprinter.

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

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

spontaneous.

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

[1944]).) 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 unsuc-
Nos. 06-2375, 06-2376 & 06-2421 33

cessful) 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
34 Nos. 06-2375, 06-2376 & 06-2421

contrite he wouldn’t be seeking a lighter sentence—he

would reject the acceptance discount.

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 (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.”
Nos. 06-2375, 06-2376 & 06-2421 35

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. Quartermanm 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
36 Nos. 06-2375, 06-2376 & 06-2421

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, 12 S.W.3d 225 (Ark. 2000);

Schoels v. State, 966 P.2d 735 (Nev. 1998); People v.

Poindexter, 50 Cal. Rptr. 3d 489 (App. 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, 276 Cal. Rptr. 498, 500-01

(App. 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
Nos. 06-2375, 06-2376 & 06-2421 37

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 (1992) (concurring opinion).

8-25-08