Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

U.S. v. MIKOS

July 15, 2004.

UNITED STATES, Plaintiff,
v.
RONALD MIKOS, Defendant.



The opinion of the court was delivered by: RONALD GUZMAN, District Judge

MEMORANDUM OPINION AND ORDER

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 seeks 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

  In 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 Mikos' patients, including Joyce Brannon, whom he last treated sometime in 1997. The central allegations were that Mikos billed Medicare 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 at grand jury proceedings on January 31. Mikos, who was aware 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 made to five individuals regarding the January 24 phone call she received 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. Brannon told the Agents she recalled that Mikos trimmed her toenails 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 surgeries. 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 lasted seven seconds. About ten minutes later, Individual B returned Brannon's call and they spoke for about eighteen 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 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.)*fn1
  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 received 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 authorities 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 surgeries 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 authorities her feet.
(Id. at 5-6.)

  C. 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 C that she told the doctor she was going to go ahead with the deposition." (Id. at 8.) According to Individual C, it was unusual for Brannon to ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.