Appeals from the United States District Court for the Northern District of Illinois, Eastern Division. No. 02 CR 137-Ronald A. Guzmán, Judge.
The opinion of the court was delivered by: Easterbrook, Chief Judge
Before EASTERBROOK, Chief Judge, and POSNER and EVANS, Circuit Judges.
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 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 over-whelming 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, 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, brass-coated 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 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.
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 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).
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).
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 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.
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 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 ...