recovered from a site which Defendant had not controlled for approximately seven months. In
United States vs. Covelli, Id. at 855-56, n. 14, the court found no error in admitting evidence of
prior instances of possession of a gun which occurred seven months and three years prior to the
commission of the alleged shooting. The time frame in the case at bar falls easily within these
parameters.

Prongs three and four, however, pose a problem for the prosecution. These prongs require
that the evidence be sufficient to support a finding that the defendant committed the similar act;
and that the probative value of the evidence not be substantially outweighed by the danger of
unfair prejudice. These weapons were recovered from a site which Defendant had not controlled
for approximately seven months. The only evidence linking Defendant to the possession of these
weapons is his prior occupancy of the premises and the present owner’s denial that the weapons
are his. The probative value of a cache of weapons over which Defendant apparently exerted no
control and as to which he cannot be directly linked is slight. The possible prejudice to
Defendant is that the jury will see him as obsessed with guns and draw a negative inference about
his character and his propensity to engage in violence. The weapons are removed in time and
place from the alleged offense, and the evidence linking Defendant to the weapons is
circumstantial and slight. Further, the government does not need this particular evidence to
establish Defendant’s familiarity with guns and their use. This evidence would be cumulative.
When weighed against the potential prejudice to Defendant the slight probative value of this
evidence is substantially outweighed by the danger of unfair prejudice and the evidence is,

therefore, excluded under Rule 403.


and ammunition which had previously been seized from the defendant and then returned to him
would be prejudicial to Defendant. Defendant’s argument is that from this evidence jurors will
be led to expect an explanation from the defendant as to what happened to this weapon. This, in
turn, would amount to a violation of Defendant’s right to remain silent. The defendant draws a
comparison to the violation that would occur if the government argued to the jury that the
defendant’s failure to explain what happened to the gun is evidence of the fact that the gun is
indeed the murder weapon. The Court disagrees, The government represents they will make no
such argument and indeed, would not be allowed to do so. But the fact that the defendant
possessed a gun suitable for committing the murder, that he kept that gun at one point in time just
days before the murder with other guns, and that this gun alone is now missing, constitutes
circumstantial evidence that the defendant has hidden the gun. As such, it may be weighed by the
jury along with all other relevant evidence. Circumstantial evidence which tends to implicate a
defendant is not the same as an impermissible reference to a defendant’s failure to testify.

The court will consider giving the jury appropriate limiting instructions following the
introduction of any of the contested evidence discussed above as well as a cautionary jury

instruction at the end of the case if Defendant so requests.

CONCLUSION
For the foregoing reasons, the Court grants in part and denies in part the Government’s
motion to admit certain evidence regarding Defendant’s possession of firearms under Federal

Rule of Evidence 404(b) [doc. no. 239-1]. The evidence recovered from 9311 Lincolnwood

10


admissible under Rules 404(b) and 403.

In this seizure, as in the first, the Court cannot conceive of a way for the government to
introduce the evidence without also introducing the details of the seizure, such as the fact that
the weapons were hidden. These details, where the guns were found and the incidents of
ownership (the business cards and documents containing Defendant’s name) found with them,
provide evidence of Defendant’s ownership and control. Evidence of Defendant’s ownership is,
of course, crucial to relevance, Indeed, the lack of such evidence regarding the first group of
weapons seized is one of the main reasons that evidence was found inadmissible. The Court has
not been given any basis for determining that the pink tablets recovered have any relevance or

probative value to this case and, therefore, those items will not be admitted.

IV. Third Group Of Weapons - 7827 Keystone, Skokie Illinois

On January 6, 2002, Skokie police officer Daniel O’Brien, responding to a domestic
disturbance call, confiscated the following weapons and ammunition which Defendant admitted
he was storing in the basement of that location: 1) Herbert and Schmidt .22 caliber revolver
(stamped with “Hawes”), 2) Charger Arms Bulldogs .44 special caliber revolver, 3) .22 caliber
Calico M-100 .22 Semi-automatic, 4) Smith and Wesson 9mm Semi-automatic, 5) Remington
Model 514 .22 caliber rifle with scope, 6) Remington Model 5601 .22 caliber rifle with scope, 7)
Universal .30 caliber rifle with scope, 8) J.C. Higgins Model 20 twelve-gauge shotgun with
scope, and 9) hundreds of rounds of ammunition of various calibers. On January 24, 2002, all of
these items were returned to Defendant when he produced a valid Firearm Owner’s Identification

Card. Three days later, Joyce Brannon was shot to death. On February 5, 2002, nine days after


Ill. Second Group of Weapons - 5958 West Lawrence, Chicago IL

On February 19, 2002, federal agents searched 5958 West Lawrence, Chicago, Illinois.
From a least June 1992 to approximately January 13, 2002, Defendant rented office suite 104 at
that location. A search of suite 104 resulted in the following items being recovered from above
the ceiling tiles: 1) a Ruger Super Redhawk .44 Magnum revolver, 2) a Reiger Blackhawk .44
Magnum revolver, 3) 166 capsules of pink tablets in a bottle marked “Propoxyphene HCI”, 4)
550 rounds of .22 caliber ammunition, and 5) various documents including a business card for
“Ronald Mikos” and blank checks printed with “Ronald Mikos.” The owner of the premises told
the agents that none of these items were his and that he did not know to whom they belonged.

The considerations as to prongs one and two of the test are the substantially the same as
discussed above for the first group of weapons. The ownership of such weapons provides
evidence of Defendant’s familiarity with handguns and their use. In addition, the 550 rounds of
.22 caliber ammunition show that Defendant had access to the type of bullets used to kill the
victim. The fair inference, it can be argued, is that if he had such large amounts of .22 caliber
bullets, he also owned a weapon with which to fire them and that he has had much practice doing
so. Thus, this evidence tends to prove Defendant possessed the means to commit the crime, i-e.,
opportunity and knowledge.

In this seizure the requirements of prongs 3 and 4, are also met. Proof of Defendant’s
ownership is strong. The location and time of the seizure indicated ownership as do the
documents found with the weapons. The weapons were accessible to Defendant during the
relevant time period. The probative value of the evidence is, therefore, not substantially

outweighed by the danger of unfair prejudice. The recovered weapons and documents are


can reach a stipulation as to Defendant’s possession of the weapons during the relevant time
period which would obviate the need to prove the confiscation and later return of the firearms.
The evidence regarding the sequence of events involved in the seizure and return and subsequent
renewed seizure of the weapons is intricately related to and inextricably intertwined with the
facts of this case. The fact of the “domestic dispute” - the reason for the initial police
involvement that resulted in the first seizure of the weapons - is not particularly relevant and it
may not need to be brought out on direct examination if the officers’ presence at the scene can be
otherwise reasonably explained or subject to a stipulation. This issue remains open for further
argument.

Finally, the recovery of the book, How to Hide Anything, is relevant. It is not admitted to
show defendant’s character and propensity to commit the crime charged. It tends to show that
Defendant was planning to and had knowledge of how to successfully hide things. Because the
murder weapon has never been found and the prosecution’s theory is that Defendant used the
missing .22 caliber Herbert and Schmidt revolver and then hid it, Defendant’s possession of or
access to the knowledge in this book becomes relevant and admissible to show knowledge,
opportunity, plan or absence of mistake or accident as well as means. This evidence would help
explain why the murder weapon was never recovered even though Defendant was arrested and
his properties searched, The book is therefore admissible. There is nothing inherently prejudicial
about possession of such a book and whatever slight prejudice there could possibly be to the
defendant is substantially outweighed by the probative value.

The defense complains that to allow evidence of the government’s failure to find the .22

caliber Herbert and Schmidt revolver when they once again retrieved all of the other weapons


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

EASTERN DIVISION
UNITED STATES OF AMERICA, ;
)
Plaintiff, )
) 02 CR 137

)
Vv. )

) Judge Ronald A. Guzman
)
)
RONALD MIKOS et al., )
)
)
Defendant. )

MEMORANDUM OPINION AND ORDER

Defendant is accused of the murder of Joyce Brannon. On January 7, 2002, Ms. Brannon
was shot five times in the back of the head with a 22 caliber gun. Although the murder weapon
has not been recovered, the Government moves to admit certain evidence regarding Defendant’s
possession of firearms under Federal Rule of Evidence (“Rule”) 404(b). For the reasons
provided in this Memorandum Opinion and Order, the motion is granted in part and denied in

part.

1. Gun Ownership in General

Because the crime of which Defendant is accused was committed with a firearm, his


Drive will not be admitted. All other evidence seized is ruled admissible.

SO ORDERED ENTER: Dah a / A005

RONALD A. GUZMAN
District Judge

G:\Masterlist Project Folders\USA V. RONALD MIKOS 02-137\MOO2 A re guns caches.wpd

ll


the murder, law enforcement officers retrieved from a storage facility rented by Defendant all of
these items which had been returned to him except the .22 caliber Herbert and Schmidt revolver.
Also retrieved from this storage facility was a book entitled How to Hide Anything. The
government will present ballistic analysis evidence to show that a .22 caliber Herbert and
Schmidt revolver is one possible weapon used to murder Joyce Brannon.

The weapons are not being offered to prove the defendant’s propensity to commit the
crime charged, and may be admitted for the alternative reasons discussed above as to both the
first and second group of weapons seized. In addition, one of the weapons recovered on this
occasion is a weapon that could have been used to commit the murder. Further, that weapon is
now missing, the only one to be missing from this particular group of weapons. Thus, the
connection to Defendant and the probative value of this evidence cannot be questioned. That the
guns were initially confiscated by the police and then later returned is evidence that would tend
to indicate prior criminal conduct, i.e., possession of a firearm without a Firearm Owners
Identification Card. Such proof could, of course, be prejudicial to Defendant. However, once
again the details of how the items were seized are essential to prove that the .22 caliber handgun
belonged to Defendant and to give credibility to the investigative process. The probative value of
the evidence is enhanced by a believable showing of how the evidence was acquired. The
sequence of events is also necessary to show that Defendant was in possession of or had access to
the .22 caliber gun (which is of the type that could have been used to commit the murder and
which is now missing) during the time of the murder. This is crucial evidence that Defendant
had the means to commit the crime. Therefore, these events constitute relevant probative

evidence as to opportunity, knowledge and means, and they will be admitted unless the parties


The first prong of this test is easily met. All this first prong requires is a determination
that the evidence is being offered to show anything other than Defendant’s propensity to commit
the crime charged. United States vs. Thomas 321 F.3d 627, 634 (7" Cir. 2003). Even if, the only
purpose for admitting the evidence is, as Defendant argues, to show Defendant’s propensity to
hide guns, hiding guns is not a crime and certainly, it is not the crime with which Defendant is
charged. Therefore, the evidence is directed towards establishing a matter in issue other than the
defendant’s propensity to commit the crime charged. The rule mentions opportunity, preparation,
plan, and knowledge among other permissible purposes for introducing evidence of prior acts.
Furthermore, as pointed out above, evidence of Defendant’s ownership and familiarity with guns,
as well as his experience in hiding guns in the past, clearly tends to prove knowledge relevant to
the commission of the crime in addition to opportunity and possibly planning and preparation as
well. Given the circumstances of this case, the Court does not see how the government can show
ownership of these guns without also introducing in detail the circumstances under which they
were found — hidden in the crawl space in the garage ceiling. This evidence is intertwined with
the facts of the case. Therefore, evidence of Defendant’s prior act of hiding weapons is
unavoidable.

The second prong of the admissibility test under Rule 404(b), i.e., the evidence shows
that the other act is similar enough and close enough in time to be relevant to the matter in issue,
is also met. The prosecution’s theory of the case is that the defendant used a gun to kill the
victim and then hid the gun to keep it from any investigating authority. Therefore, his experience
with guns and his experience and practice in hiding guns are all clearly relevant. The question of

“close enough in time to be relevant to the matter in issue” is a closer call. These weapons were


I. First Group of Weapons - 9311 Lincolnwood Drive

From approximately 1995 to 2001, Defendant rented a house at 9311 Lincolnwood Drive,
Chicago Illinois. In July 2001, he was evicted. On February 19, 2002, federal agents searched
that house and found the following items in the crawl space in the garage ceiling: 1) a
Winchester Model 370A 30-06 caliber rifle, 2) a variable power Bushnell Sportsview scope, 3) a
box of Remington 30-06 caliber bullets, and 4) a long gun guard plastic gun case. The owner of
the property stated that the weapons are not his and that he does not know to whom they belong.

The defense asserts that the government’s only purpose for presenting evidence of these
hidden gun caches is to convince the jury that Defendant has a propensity to hide weapons and
thus, they should conclude that Defendant has hidden the missing murder weapon as well. This,
the defense argues, is precisely the type of use of other acts evidence that is prohibited by Rule
404(b), to wit: “Evidence of other crimes, wrongs, or acts is not admissible to prove the
character of the person in order to show action in conformity therewith.” The Seventh Circuit
has held that evidence is admissible under Rules 404(b) and 403 if: (1) the evidence is directed
toward establishing a matter in issue other than the defendant’s propensity to commit the crime
charged; (2) the evidence shows that the other act is similar enough and close enough in time to
be relevant to the matter in issue; (3) the evidence is sufficient to support a finding that the
defendant committed the similar act; and (4) the probative value of the evidence is not
substantially outweighed by the danger of unfair prejudice. United States vs. Smith, 103 F.3d
600, 602 (7" Cir. 1996); United States vs. Moore, 115 F.3d 1348 (7" Cir. 1997) The Court,

therefore, must consider these four factors.


ownership of firearms can be relevant as it may tend to show opportunity - access to and

familiarity with the use of firearms in general.

However, evidence of prior possession of a weapon can be used to
prove opportunity and identification even where it cannot be
directly identified as the weapon used in the crime. See
Government of Virgin Islands v. Joseph, 685 F.2d 857, 860-61 (3d
Cir.1982); United States v. Miroff; 606 F.2d 777, 781 (7th Cir.),
cert. denied, 445 U.S. 928, 100 S.Ct. 1315, 63 L.Ed.2d 761 (1979).

US. v. Covelli 738 F.2d 847, *855 -856 (7" Cir.1984)

The fact that the firearms recovered are not the precise type of weapon used in the commission
of the murder is not controlling. A person who routinely uses and keeps firearms about him is
arguably better prepared to commit a crime with a firearm than one who is unfamiliar with them.
Such a person is also familiar with where to purchase firearms and ammunition, how to transport
a gun, how to load and shoot a gun, the noise that can be expected from discharging weapons of
different calibers, and the likely effect of using the various calibers of ammunition. These are all
considerations in the planning and execution of a murder by gunfire. Common sense tells us that
should a person decide to commit a crime of violence, he is more likely to use an instrumentality
with which he is familiar. The evidence of possession of and familiarity with other firearms,
although not as probative as evidence of possession of the same caliber and type of weapon as
the murder weapon, can, given the proper circumstances, nevertheless be relevant and
admissible. In order to determine and weigh relevance, probative value, and possible prejudice
to Defendant, we must look to the circumstances under which each cache of weapons was

recovered. The proposed evidence can be divided into three groups.