Resp. at 22.) The Court acknowledges that those are questions that will remain unasked but is
satisfied that the circumstances render Brannon’s statements to her sister and Individual B
trustworthy, for the reasons that follow.

There is no scrious question as to Brannon’s character for honesty and truthfulness.
Brannon lived and worked at a church. She was not under investigation and had no apparent
reason to lie about her conversation with Mikos or her intended testimony. Moreover, despite the
defense’s vague assertion, no one has suggested any conduct on Brannon’s part that might
implicate her in the fraud scheme or jeopardize her nurse’s license. Brannon’s relationship with
the defendant is that of a former patient. Neither party has indicated why the doctor-patient
relationship terminated, and there is no reason to believe that it ended badly or that Brannon had
an axe to grind against Mikos for any reason.

Brannon told the same story regarding Mikos from the time she was first contacted by
HHS Agents until the day she was murdered. Vretta, 790 F.2d at 659 (finding fact that victim
made same statements to a number of people enhanced credibility).’ Moreover, the statements to
her sister and Individual! B were not elicited by law enforcement officers or government olficials
but were taken from conversations Brannon initiated with her sister and trusted friends because
she wanted to talk about what had just happened. These conversations occurred shortly after she
hung up with Mikos, so there was little or no time for reflection, embellishment or fabrication.

Finally, the testimony the government is seeking to admit is based on Brannon’s personal

7 In Vretta, the court admitted the hearsay under Rule 804(b)(5), which at the time was
considered the residual exception when the declarant was unavailable. 790 F.2d at 658. The
contents of Rule 804(b)(5) have now been transferred to Rule 807. United States v. Hall, 165
F.3d 1095, n.8 (7th Cir. 1999).

13



going to tell the truth. The doctor asked her to reconsider because he had small
children to think about and could lose it all. Brannon told the doctor she was going
to go through with her testimony.

(Gov't Mot. at 6-7.)!
Phone records show that at around 9:33 p.m., Brannon’s sister returned her call and they
spoke for about nine minutes. Her sister allegedly would testify that Brannon told her the following:

Brannon had reccived a subpoena to testify on January 31, 2002 against a doctor who
had committed Medicare fraud by putting in false claims using her as a patient. The
doctor had put in over twenty claims for surgery on her feet and all he had done was
cut her toenails. Brannon told her sister that the doctor had called her at home on
January 24 and told her that he just wanted to give her his new telephone number.
The doctor then told Brannon that if she testified against him that he would lose his
medical license. Brannon told the doctor that she would not lie for him because she
would lose her nurse’s license. The doctor then told Brannon that her testifying
would ruin his family and that he has little children at home. The doctor also told
Brannon that she could just tell the authoritics that she did not remember anything
that happened. Brannon told the doctor that she would not lie because she was an
honest person. Brannon then told the doctor that he did not do any of the surgcrics
on her that he claimed but only cut her toenails and she had no scars on her feet. The
doctor then told her that she could say that the scars were in the folds of her skin.
Brannon told the doctor she was going to tell the truth and if they wanted she would
show the authoritics her feet.

(Id. at 5-6.)
Lon Visit by Home Healthcare Nurse, Individual C

The following day, Brannon allegedly had a conversation with her home healthcare nurse,
Individual C, during her regular Friday appointment. According to Individual C, Brannon told him
that “she was going to give a deposition the following week regarding a foot doctor....and that the

doctor had called her the previous night...and wanted to talk about the deposition. Brannon told

' Individual B also told investigators about a previous conversation with Brannon, during
which Brannon told Individual B the investigators asked her “about twenty surgerics to rclease
contractors in her legs, Brannon said she told the investigators she had never had any surgeries
done by the doctor, and all he had done was cut her toc nails [sic].” (Gov’t Mot. at 7.)

4



conspirator statements and are not necessarily appropriate in all cases for making a preliminary
admissibility decision under the wrongdoing exception.

In addition to being troubled by the proposed procedure for determining admissibility, the
Court is concerned by the potential importance of the testimony, the fact that this is a capital
case, and the fact that the alleged wrongdoing is one of the crimes to be proven at trial, The
Court is aware that the wrongdoing exception was employed in Thompson, where the
wrongdoing, i.e., the murder of an informant and its cover-up, consisted of crimes to be proven at
trial. 286 F.3d at 956. However, Thompson is distinguishable because the statements admitted
were not important to the government’s case, whereas in this case, they are potentially powerful
evidence against the defendant. Jd. at 962. Indeed, Brannon allegedly stated that she intended to
testify at the grand jury proceedings that Mikos had never performed surgery on her feet and that
he called her to convince her to lie about it, These statements go to the heart of the charges in the
indictment: that Mikos is guilty of healthcare fraud and obstruction of justice, and that he had a
motive to murder Brannon.

Moreover, to admit these statements, the government would first be required to prove the
defendant guilty by a preponderance of the evidence of the very crime charged in the indictment,
i.e., Brannon’s murder, The testimony could then be used to prove the defendant’s guilt again,
only this time, before a jury and beyond a reasonable doubt, of the crime charged in the
indictment, Brannon’s murder. Allowing otherwise inadmissible evidence to prove a defondant’s
guilt in a capital case based upon a judgo’s pretrial conclusion that the defendant is in fact guilty

of that very crime appears to us to be a slippery slope. The resulting erosion of a defendant’s

right to a trial of the issues by a jury of his peers could be significant. The relaxation of the rules



the hearsay rule.? Under this exception, statements of an unavailable witness are admissible
against a party who has “engaged or acquiesced in wrongdoing that was intended to, and did,
procure the [declarant’s] unavailability.” Fed. R. Evid. 804(b)(6). To prevail on this argument,
the government must prove by a preponderance of the evidence that Mikos murdered Brannon to
prevent her from testifying. United States v. Scott, 284 F.3d 758, 762 (7th Cir. 2002), The
government proposes “conditional admission of Joyce Brannon’s statements pursuant to a proffer
of the evidence it intends to offer establishing thal defendant murdered Joyce Brannon.” (Gov't
Mot. at 3 n.2.) The government informed the Court that the proffer procedure is well established,
citing United States v. Thompson, 286 F.3d 950, 961 (7th Cir. 2002), and United States v. Cox,
923 F.2d 519, 526 (7th Cir. 1991),

In essence, the government would be required to convince the Court by a preponderance
of the evidence that Mikos killed Brannon to prevent her from testifying. None of the cases cited
by the government persuade the Court that a proffer procedure is an appropriate mechanism for
making this determination in this case. For instance, in United States v. Thompson, the
government sought to admit statements of a murdered informant under the wrongdoing
exception. 286 F.3d at 961. The statements pertained to “uncompleted drug transactions,
detailed some of the conspiracy’s money laundering activities, and pul names to faces and
owners to vehicles.” /d. at 962-63. The government’s proffer asserted that five defendants
participated in the declarant’s murder ot cover-up to prevent him from providing further

information to the authorities. Jd, at 961. Based on the proffer, the district court admitted the

2 ‘The government contends that Brannon’s statements arc “admissible under several
alternate evidentiary theories,” however, it discussed only the wrongdoing and residual
exceptions. (Gov't Mot, at 4.3.) Therefore, the Court will address only those exceptions.

6



Individual C that she told the doctor she was going to go ahead with the deposition.” (/d, at 8.)
According to Individual C, it was unusual for Brannon to mention the conversation because “their
typical conversations were small talk, and Brannon did not talk about personal things to him,” (/d.)
D. Conversation with Church Volunteer, Individual D

On the afternoon of January 27, 2002, Brannon had a conversation with a church volunteer,
Individual D. Brannon said she “would not be at the church on January 31, 2002 because [she] was
going to testify in [sic] the grand jury against her former doctor. Brannon told Individual D that the
doctor had billed Medicare for a number of operations on her feet when all he did was clip her
toenails, Brannon then told Individual D that the doctor had called her several times and pleaded
with her not to say anything about his billing practices because it would ruin his carcer. Brannon
told the doctor he would have to face what he had done.” (/d. at 8-9.) Individual D allegedly was
very surprised to hear Brannon talk about her conversation with the doctor as they usually discussed
the weather or church-related activities.
KE, Conversation with Friend, Individual E

Finally, Brannon allegedly spoke with a friend, Individual E, several times about defendant,
Brannon allegedly said Mikos “begged her not to testify” and told her “she just did not remember
the number of operations [he] performed.” (/d. at 9.) According to Individual E, Brannon responded
that “she was an emergency room nurse, and she knew what was done to her.” (/d.)

Analysis

A. The Wrongdoing Exception

The government seeks to admit Brannon’s statements under the wrongdoing exception to



the witness’ unavailability by threats and coercion. Jd. On appeal, the Seventh Circuit
characterized the statements as “powerful testimony in a conspiracy case,” and ruled that they
were properly admitted under the wrongdoing exception. Jd. at 762, 765.

Finally, United States v, Cox, 923 F.2d 519, 526 (7th Cir, 1990), was a drug prosecution
case involving the admissibility of hearsay statements under (he co-conspirator exception. The
Seventh Circuit stated that the ex parte proffer procedure used in Cox “gives us pause” and
proceeded to lay out approved procedures for making a preliminary admissibility determination
for co-conspirator statements, including: (a) ruling based on a pretrial proffer, subject to the
court’s later determination that, based on all the evidence admitted at trial, the government has
proven the foundational elements by a preponderance of the evidence; (b) ruling on each
statement as it is clicited based on the evidence adduced to that point; (c) in the absence of a
pretrial proffer, conditionally admitting the coconspirator’s statements subject to the
government's eventual proof of the foundational elements (the penalty for not so proving being a
possible mistrial); or (d) holding a “full blown” preliminary hearing. Jd. at 520, 526 (citing
United States v. Andrus, 775 F.2d 825, 836-37 (7th Cir. 1985)).

The government suggests that the proffer procedure is appropriate for this case. The
defendant did not comment on or object to this procedure, except to argue that the evidence set
forth in the government's brief fails to establish that Mikos killed Brannon by a preponderance of
the evidence. The Court is unwilling to admit Brannon’s statements based on a proffer. It is true
that a proffer procedure was used in both Thompson and Ochoa, but in both of those cases, the

evidence was admitted erroneously. In Scoft, statements were properly admitted, but only after

an evidentiary hearing, Further, the procedures sct forth in Cox were in reference to co-



‘Minute Ondex Form (06/97)

«

United States District Court, Northern District of Ilinois

Name of Assigned Judge
or Magistrate Judge

Ronald A. Guzman

Sitting Judge if Other
than Assigned Judge

CASE NUMBER 02 CR 137-1 DATE 7115/2004
CASE USA vs. RONALD MIKOS
TITLE
[In the following box (u) indicate the party filing the moti ¥., plaintiff, defcudant, 3rd party plaintiff, and (b) state briefly the nature

MOTION: of the motion being presented.]

DOCKET ENTRY:

qb Oo Filed motion of [ use listing in “Motion” box above.]

(2) oO Brief in support of motion due

(3) Q Answer brief to motion duc . Reply to answer brief due. :

(4) Oo Ruling/Hearing on set for _at

(5) 0 Status hearing[held/continued to] {set for/re-set for] on set for __ at

(6) oOo Pretrial conference[held/continued to] [set for/re-set for] on ____set for at

(7) oO Trial[set for/re-set for] on at

(8) O [Bench/Jury trial] [Hearing] held/continued to _at

(9) QO This case is dismissed [with/without] prejudice and without costs[by/agreement/pursuant to]

OFRCP4(m) OLocal Rule 41.1 OFRCP41(a)(1) OO FRCP41(aX2).

(10) Wi [Other docket entry) ENTER MEMORANDUM OPINION AND ORDER: Govemment’s motion
in limine secking to admit various hearsay statements made by murder victim is granted and denied in
part.

(11) @ [For further detail sce order attached to the original minute order.]

No notices required, advised in open court,
No notices required.
Notices mailed by judge's staff.
Notified counsel by telephone,
7 | Docketing to mail notices.
Mail AO 430 form.
uy
Copy to judgo/magistrate judge. yungg 18
Mi

date railed notice

ya Gt Tae nea

courtroom eA yh
ca deputy's Cuil
initials

71, Biate/timd tubkived in

» =~ central Clerk’s Office tnailing deputy initiate



HHS Agents interviewed Brannon as part of a formal healthcare fraud investigation,
Their purpose was to gather information for potential use against Mikos at trial, thus, the Court
finds that Brannon’s statements to the HHS Agents fall within the realm of testimonial
statements, See United States v. Saner, 313 F. Supp. 2d 896, 902 (N.D. Ll. 2004) (holding
statements made in response to questioning by Department of Justice prosecutor were
testimonial). Because Mikos had no opportunity for cross examination, these stalements must be
excluded.

The remaining statements the government seeks to admit stem from Brannon’s
conversations with her sister and friends. There was no government involvement in these
conversations, therefore they are not testimonial in nature and Crawford does not apply. Saner,
313 F. Supp. 2d at 900 (stating Craw/ord's holding is limited to testimonial statements).

Cc. The Residual Exception

The government argues Brannon’s statements to her sister and friends are admissible
under the residual exception. Because the residual exception is not a “firmly rooted exception”
(o the hearsay rule, the statements cannot be constitutionally admitted unless they contain
“narticularized guarantees of trustworthiness.”* Ohio v. Roberts, 448 U.S. 56, 66 (1980). A trial

judge has considerable discretion in determining whether hearsay statements are trustworthy.

3 The Court rejects the defendant’s reliance on /n re Denslow, 104 B.R. 761, 766 (E.D.
Va, 1989) (holding that the residual exception cannot be used when the proffered evidence fits
under a conventional exception but is excluded for lack of proof), The residual exception is not
so narrowly applied within the Seventh Circuit and may be used as an alternate theory of
admissibility. See United States v. Vretta, 790 F.2d 651, 658 (7th Cir. 1986) (admitting evidence
under residual exception instead of state of mind exception); United States v, Santos, 65 F. Supp.
2d 802, 823 (N.D. Ill. 1999) (concluding that even if the hearsay in question was inadmissible as
a present sense impression, it would come in through the residual exception). Moreover,
Brannon’s statements were not excluded under the wrongdoing exception for failure of proof.

1



of evidence based upon the Court’s pretrial determination of the defendant’s probable guilt
carries with it the very real possibility of someday substantially eroding the defendant's right to
be presumed immocent, The rules of trial should not depend upon the Court’s pretrial opinion of
ihe defendant's guilt or innocence. This issue is not necessarily cncountered when the wrongful
conduct which the defendant is accused of in connection with the witness” unavailability is not
also the very crime for which he will be tried. But when it is the case, the Court should, at the
very least, be extremely reticent to engage in any pretrial procedures that might predctcrmine the
outcome of the case, By relaxing the rules of evidence to allow testimony which would not be
admissible absent a pretrial determination of guilt, we come perilously close to a self-fulfilling
prophecy. Therefore, this Court declines to decide whether the wrongdoing exception applies
based on a pretrial proffer, The government's motion to admit Brannon’s statements under the
wrongdoing exception is denied.
B. The Crawford Decision

Next, the Court considers whether Brannon’s statements to HHS Agents are admissible in
light of Crawford v. Washington, ---- U.S. ----, 124.8, Ct, 1354, 1374 (2004), which was
published afler this motion was fully briefed. In Crawford, the Court ruled that “testimonial”
hearsay statements of an unavailable witness are inadmissible unless there was an opportunity for
cross cxamination. /d, The Court did not spell out the definition of “testimonial,” but stated that
the term “applies at a minimum lo prior testimony at a preliminary hearing, before a grand jury,
or at a former trial; and to police interrogations.” Jd. at 1375. ‘The opinion made clear that
formal statements to government officers are considered testimonial, whereas casual remarks to

acquaintances are nol. Jd. at 1364.

10



statements under the wrongdoing exception.’ Jd. On appeal, the Seventh Circuit suggested that
the statements were admitted in error, but concluded that any error was harmless. Jd. It reasoned
that the government provided overwhelming evidence of guilt on the drug charges, that the
statements pertaining to the drug charges “were not very important to the government’s case;
and, to the extent the statements were important, they were cumulative.” Jd. at 962 (citation
omitted).

In United States y. Ochoa, 229 F.3d 631, 638 (7th Cir. 2000), a government witness could
not be found when it came time for trial. The government argued that the witness’ prior
statements to law enforcement officers were admissible under the wrongdoing exception because
the defendant helped the witness flee by allowing him to use defendant’s phone. Jd. at 639, The
statements were admitted under the wrongdoing exception during the course of the trial.’ Jd.

The Seventh Circuit found that the defendant’s conduct did not amount to a wrongdoing, but in
the end, concluded that even though the statements were admitted in error, the error was
harmless. Id.

In United States v. Scott, 284 F.3d 758, 760-62 (7th Cir. 2002), the court used the
wrongdoing exception to admit the grand jury testimony of a witness who refused to testify at
trial. The testimony, which confirmed defendant’s involvement in various drug transactions, was

admitted after the court conducted an evidentiary hearing to determine if the defendant procured

> The jury ultimately acquitted defendants on the murder and cover-up charges, Jd, at
956,

* The Seventh Circuit ruled that the alternative theories of admission, namely Federal
Rules of Evidence 804(b)(3) and 807, also were erroneous, Ochoa, 229 F.3d at 638-39, The
statements did not contain particularized guarantees of trustworthiness because thcy were elicited
by law enforcement officers. /d. at 639.



Brannon told the Agents she recalled that Mikos dimmed her tocnails because she had a bad
back and could not take care of her feet. She also recalled having surgery on both big toes, but
could not remember if defendant performed those surgerics. According to the Agents, Brannon
also said, “no way did he do that many surgeries. He might have scraped a scar or put medicine
on my wart, but he did not do that.” (Gov't. Mot. at 10.)

B. Phone Calls to Brannon’s Sister and Individual B

As mentioned above, Mikos called Brannon on January 24, Their conversation ended
around 8:05 p.m. A few minutes later, phone records show that Brannon called her sister. That
call lasted only a few seconds and ended in Brannon leaving a message stating, in essence, that
she “received a subpoena to testify against a doctor for Medicare fraud and the doctor had called
her at home and tried to talk her out of it.” (Gov’t Mot. at 5.)

Brannon then dialed her friend, Individual B. That call Jasted seven seconds. About ten
minutes later, Individual B returned Brannon’s call and they spoke for about cighteen minutes.
Phone records show that Individual B called Brannon back a second time. This conversation
lasted for a little more than three minutes, ending around 8:47 p.m. Individual B would testify
that their conversation went as follows:

Brannon said that the podiatrist that she was going to testify against had just called

her. Brannon said that the doctor asked her about her interview with the

investigators. He wanted to know what questions the investigators had asked

Brannon and what she had told them. Brannon said that the doctor wanted her to

change her testimony to say she had in fact had the surgeries. Brannon told the

doctor she wouldn’t lie because she could not prove that she had the surgeries as she

had no scars from any surgeries. The doctor told Brannon that this could be

explained by saying that the scars were in between the skin folds and were therefore
not visible.

Brannon told the doctor she was not going to change her testimony because she was



knowledge of the phone call from Mikos and the treatments she received from him while under
his care. None of the statements pass judgment or seek to blame Mikos, to the contrary, it
appears that Brannon was simply relaying what had just transpired. The Court finds Brannon’s
alleged conduct and statements are consistent with those of a disinterested third party who was
simply cooperating with the authorities and was bent on telling the truth because it was the right
thing to do. While Brannon’s statements were not given under oath or subject to cross
examination, the Court finds that the circumstances set forth above and the consistency of the
statements renders them trustworthy.

Next, the Court must analyze whether the statements meet the remaining critcria set forth
in Rule 807. The substance of Brannon’s statements are relevant to material facts, namely
whether (a) Mikos submitted fraudulent claims to Medicare using Brannon as a patient, (b)
interfered with the government’s investigation, and (c) had a motive for murdering Brannon.
Moreover, the statements are more probative than other evidence the government may offer with
tespect to these facts. Brannon’s statements that Mikos never performed surgery on her feet and
that he asked her not to testify or to lie, will not come in any other way. While there may be
autopsy photographs that show lack of scarring on Brannon’s feet or testimony from a medical
examiner to that effect, such evidence probably would not be as probative as a dircct statement
from Brannon that Mikos never performed surgery on her. Further, while other witnesses may
testify that Mikos attempted to persuade them not to cooperate with authorities, the evidence will
not come in wiih respect to Brannon except by these statements. Finally, Brannon’s statements
that she intended to go through with testimony which would be damaging to Mikos is the best

evidence of the motive for her murder. Thus, the Court finds it in the interest of justice to admit

14



inadmissible under the residual exception.’
D. Defendant’s Rule 403 Challenge

Defendant challenges the admissibility of Brannon’s statements under Federal Rulc of
Evidence 403. As stated above, the statements are probative of material facts. The Court has
little trouble concluding that admitting limited testimony from two witnesses regarding
Brannon’s hearsay statements, given immediately after the unusual event they describe, is on
balance more probative than prejudicial.

Conclusion

After careful consideration, the Court will allow testimony under the residual exception
regarding statements Brannon made to her sister and Individual B on January 24, 2002. All other
statements are excluded.

SO ORDERED. enrerep: 7// Sod

HON, RONALD A. GUZMA
United States Judge

9 The statements Brannon allegedly made to Individual B sometime before January 24,
2002 regarding her interview with the HHS Agents are excluded for the same reasons.

16



Mikos’ patients, including Joyce Brannon, whom he last treated sometime in 1997. The central
allegations were that Mikos billed Mcdicare for surgeries and services which he never performed,
including some 87 surgeries on Brannon. In September 2001, HHS agents interviewed Brannon,
who denied having had surgery while under Mikos’ care.

On January 9, 2002, Brannon was served with a subpoena requiring her to testify al grand
jury proceedings on January 31. Mikos, who was awarc of the investigation, allegedly called
Brannon on the night of January 24 to convince her not to testify or to fabricate her testimony.
According to the government, Brannon informed Mikos that she would testify and that she would
tell the truth: that Mikos never performed surgery on her. Phone records allegedly show that the
call lasted approximately four minutes. Brannon allegedly discussed this conversation with her
sister and friend that evening, and with three other individuals during the next couple of days.

On January 27, while Brannon sat in her apartment in the basement of Bethany Evangelical
Church, she was shot six times in the back, neck and head at close range.

Mikos was arrested soon thereafter and later charged not only with healthcare fraud, but
also with Brannon’s murder. The government has moved in limine to admit statements Brannon
allegedly madc to five individuals regarding the January 24 phone call she reccived from Mikos.
In addition, the government wants to introduce statements Brannon made during the interview
with HHS Agents. A summary of the witnesses’ potential testimony is set forth below, in
chronological order.

A. Interview with HHS Agents

In September 2001, Brannon was interviewed by HHS Agents. The Agents asked

whether Mikos performed some 87 surgeries on her feet for which he had billed Medicare.



IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

UNITED STATES, J

Plaintiff, 02 CR 137-1
v. Judge Ronald A, Guzman
RONALD MIKOS, )

)
Defendant. ) DO
MEMORANDUM OPINION AND ORDER JUL ED

The government has filed a motion in limine seeking to admit various hearsay statements
made by murder victim, Joyce Brannon, under the wrongdoing exception, or in the alternative,
the residual exception. Fed, R. Evid. 804(b)(6), 807. The government wants to introduce
statements Brannon made to various individuals concerning a telephone conversation she had
with defendant, Ronald Mikos, three days before she was murdered, The government also secks
to introduce statements Brannon made during an investigative interview with Special Agents
from the United States Department of Health and Human Services (hereinafter “HHS Agents”).
Defendant contends the statements are inadmissible hearsay that do not fall within any exception
and also argues the statements should be excluded as more prejudicial than probative under
Federal Rule of Evidence 403. The motion is granted in part and denied in part, as discussed
below.

Background

Tn or around August 2000, the government began a federal grand jury investigation of

defendant Mikos, a podiatrist, for Medicare fraud. The investigation focused on several of



United States v, Seavoy, 995 F.2d 1414 (7th Cir. 2000) (citations omitted). The Seventh Circuit
has enumerated seven factors to consider in assessing trustworthiness, including: “[1] the
character of the witness for truthfulness and honesty, and the availability of cvidence on the
issue; [2] whether the testimony was given voluntarily, under oath, subject to cross-examination
and a penalty for perjury; [3] the witness’ relationship with both the defendant and the
government and his motivation to testify...; [4] the extent to which the witness’ testimony reflects
his personal knowledge; [5] whether the witness ever recanted his testimony; [6] the existence of
corroborating evidence; and, [7] the reasons for the witness’ unavailability.” United States v.
Doerr, 886 F.2d 944, 956 (7th Cir. 1989) (citing United States v. Snyder, 872 F.2d 1351, 1355-
56 (7th Cir. 1989)). In addition, the statements must be “offered as evidence of a material fact;”
be “more probative on the point for which it is offered than any other evidence which the
proponent can procure through reasonable efforts;” and their admission must serve “the gencral
purposes” of the rules of evidence and “ihe interests of justice.” Fed. R. Evid. 807.°

The government asserts that Brannon’s statements contain “particularized guarantees of
trustworthiness” such that admission of the statements against Mikos would not violate his rights
under the Confrontation Clause of the Sixth Amendment. First, the Court considers whether the
statements Brannon made the night of Mikos’ phone call, to her sister and Individual B, are
trustworthy. Defendant challenges the veracity of the statements by claiming that Brannon might
have “made false statements to protect her nurse’s license, because of concern of being

implicated in any way in a fraud on the Government, or simply out of personal animosity.” (Def.

® Rule 807 also provides that defendant must be given sufficicnt notice of the intent to
offcr such statements and the particulars thereof, which the government has donc by bringing this
motion.

12



testimony of Brannon’s sister and Individual B regarding their conversations with Brannon on the
night of January 24, 2002.

As to Brannon’s remaining alleged statements, made over the next few days to Brannon’s
home health nurse, a church volunteer and a friend, in an abundance of caution, (he Court finds
they are somewhat less trustworthy and less probative and therefore are inadmissible. These
statements were made after Brannon had some time for reflection.’ Even though they are
consistent with her previous statements, the passage of time weighs against their trustworthiness.
See Vretta, 790 F.2d at 659 (stating “close proximity in time between the statement repeating the
threat and the threat itself lends support to the statements’ trustworthiness”). In addition, the
statements made to Individuals C and E are more vague than the statements made to her sister
and Individual B. For instance, according to Individual C, Brannon told her that “the doctor had
called her the previous night...and wanted to talk about the deposition” she was going to give the
following week. (Gov’t Mot. at 8.) Individual E would testify that Brannon said Mikos “begged
her not to testify” and told her that she just did not remember the operations he performed. (/d. at
9.) While Individual D remembers a more substantive conversation with Brannon, it contains no
facts which will not otherwise come in through the testimony of Brannon’s sister and Individual
B. Therefore it cannot be said that the statements to Individuals C, D, and E are “more probative
of the point than any other evidence.” That, coupled with the fact that these particular

conversations occurred one to three days after Brannon’s phone call with Mikos, renders them

® Brannon’s conversation with Individual C, her home healthcare nurse, did not occur
until sometime the following day. Brannon’s alleged conversation with a church volunteer,
Individual D, took place three days after Mikos’ phone call. Finally, Brannon allegedly spoke
with a friend, Individual E, several times about defendant, Neither the circumstances
surrounding these conversations nor the dates they took place are specified.

15