In the
United States Court of Appeals
For the Seventh Circuit

No. 01-2136

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

SUSAN M. MILLER,

Defendant-Appellant.

Appeal from the United States District Court
for the Northern District of Indiana, South Bend Division.
No. 00 CR 29--Allen Sharp, Judge.

Argued November 5, 2001--Decided January 9, 2002


  Before COFFEY, ROVNER, and EVANS, Circuit
Judges.

  EVANS, Circuit Judge. After an 8-day
trial, a jury convicted Susan Miller,
Dennis Weldy, and two corporate
defendants on 31 counts charging
healthcare billing fraud and making false
statements in Medicaid billings. The
frauds totaled over $8 million.

  Miller headed the billing departments
for Option Care of Northern Indiana and
Option First Health Care, the two
corporate defendants. Weldy owned Option
Care and he and Miller owned Option
First. Beginning in late 1996, Miller and
Weldy defrauded Indiana Medicaid by
submitting inflated billing claims for
prescriptions, fraudulent compound drug
claim forms, and fraudulent claims
adjustments.

  At trial, the government attempted to
introduce evidence that, about 2 weeks
before the trial began, Miller’s ex-
husband, Tom Miller--who continued to
live with and was working for Miller--
threatened to "kick" Weldy’s "ass when
this is all done with." The government
alleges that, at the time, Weldy was
considering pleading guilty and
cooperating with the prosecution against
Miller./1 The jury never heard the
threat evidence, however, because the
district court excluded it and instructed
the jury to disregard several questions
leading up to it./2 Nonetheless, Miller
moved for a mistrial, which the district
court denied. Later in the trial, the
prosecutor commented in the presence of
the jury that the defendant had subpoena
power and was capable of putting on a
case./3 Based on these two events,
Miller appeals.

  We review for abuse of discretion the
district court’s denial of a mistrial
motion. See United States v. Canino, 949
F.2d 928, 937 (7th Cir. 1991). We view
that action deferentially because a trial
judge is in the best position to
determine whether an incident is serious
enough to warrant the drastic step of
declaring a mistrial. See id. We also
review for abuse of discretion the
district court’s decision to allow a
prosecutor’s allegedly improper remarks
to stand. See United States v. Lovelace,
123 F.3d 650, 654-55 (7th Cir. 1997).

  Miller argues that in attempting to
introduce the threat evidence the
prosecution violated Federal Rules of
Evidence 403 and 404(b). Rule 403
provides that relevant evidence may be
excluded if its probative value is
substantially outweighed by, among other
things, the danger of unfair prejudice.
Rule 404(b) provides that evidence of the
defendant’s other crimes, wrongs, or acts
is not admissible to prove her character
to show that she acted in conformity with
that character trait on the occasion in
question. Such evidence is admissible for
other purposes, such as proof of motive,
opportunity, intent, preparation, plan,
knowledge, or absence of mistake or
accident.

  Here, the government argues that Tom
Miller’s threat against Weldy was
admissible to show that Susan Miller was
conscious of her guilt. Evidence that the
defendant threatened a potential witness
or a person cooperating with a government
investigation is relevant to show the
defendant’s consciousness of guilt. See
United States v. Thomas, 86 F.3d 647, 655
(7th Cir. 1996); United States v.
Balzano, 916 F.2d 1273, 1281 (7th Cir.
1990). One of our sister circuits has
held that threats made by a person
connected with the defendant are also
admissible for the same purpose. United
States v. Gatto, 995 F.2d 449, 455 (3d
Cir. 1993). We think this is a sensible
proposition.

  Here, Tom Miller was connected with
defendant Susan Miller. He lived with
her, was once married to her, fathered
her children, and worked for her at
Option First (one of the corporate
defendants). Thus, the threat was
relevant to show that Susan Miller was
conscious that Weldy’s testimony--or
potential cooperation with the
prosecution-- could damage her case, and
thus that she was conscious of her guilt.
Therefore, the district court did not err
in refusing to declare a mistrial because
jurors had heard questions leading up to
this evidence. Indeed, the district court
erred on the side of caution in refusing
to admit the threat evidence, giving
Miller more protection than Rule 404(b)
actually affords her.

  Nor did Rule 403 bar the threat
evidence. Again, we note that the jury
did not actually hear the evidence. But
even if the district court allowed the
evidence to come in, the risk of unfair
prejudice would not have outweighed its
probative value. This is so because there
was no risk of unfair prejudice. We dealt
with an example of unfair prejudice in
Dudley v. Duckworth, 854 F.2d 967, 972
(7th Cir. 1988). There, the prosecutor
intimated that a prosecution witness was
threatened not to testify but did not
present any corroborating evidence of the
threat or any evidence that the
defendants were behind it. See id. at
969. Indeed, the prosecutor only
established that the witness may have
received a threat through this question:
"Are you afraid for your girlfriend and
your aunt if you testify?" Id. Although
the prosecutor argued that evidence of
the alleged threat was necessary to
explain the witness’ "nervousness," we
rejected that explanation as pretext. See
id. at 971. Miller’s case is
distinguishable. Here, the threat-maker’s
identity was no mystery. Additionally,
the prosecutor’s motive in attempting to
introduce the threat evidence was not
pretextual. It was a legitimate attempt
to introduce probative evidence of Susan
Miller’s consciousness of guilt.

  Miller also argues that the district
court should have stricken the
prosecutor’s statement that the defendant
was able to subpoena witnesses and put on
a case. Miller bases this argument on
Griffin v. California, 380 U.S. 609, 615
(1965), which held that the Fifth
Amendment forbids prosecutors from
commenting directly on an accused’s
decision not to testify. We extended
Griffin to hold that an indirect comment
on the defendant’s failure to testify
also violates the Fifth Amendment if the
remark was "manifestly intended or was of
such character that the jury would
naturally and necessarily take it to be a
comment on the failure of the accused to
testify." United States v. Butler, 71
F.3d 243, 254 (7th Cir. 1995).

  As a preliminary matter, we note that
Miller did testify. In fact, the
prosecutor made the challenged comment
while Miller was on the stand. Thus, we
fail to see how the remark could have
violated her Fifth Amendment right not to
testify. Even had Miller chosen not to
testify, however, the statement would not
have violated the Fifth Amendment because
it could not be construed as an unfair
comment on the defendant’s failure to
testify. The prosecutor merely noted the
defendant’s subpoena power in response to
an objection to a perfectly legitimate
question--the prosecutor asked Miller
whether Field Representative Kim Stovall,
who allegedly directed Miller to bill
Medicaid in a way contrary to Medicaid’s
manual, had testified. When Miller’s
attorney objected, the prosecutor noted
that, like the prosecution, the defense
had the power to subpoena witnesses. This
was a correct statement of the law.

  Nonetheless, Miller argues that the
prosecutor’s comment conflicted with the
requirement that the prosecution carries
the burden of proof. But as long as it is
clear to jurors that the government
carries the burden of proof, the
prosecutor may tell the jury that a
defendant has the power to subpoena
witnesses. See United States v. Aldaco,
201 F.3d 979, 988 (7th Cir. 2000); United
States v. Knox, 68 F.3d 990, 1000 (7th
Cir. 1995); United States v. Sblendorio,
830 F.2d 1382, 1393 (7th Cir. 1987).

  Here, it was immediately noted after the
"subpoena power" comment that the
government carried the burden of proof.
Additionally, the district court
instructed the jury that "[t]he
government has the burden of proving the
guilt of the defendants beyond a
reasonable doubt, and this burden remains
on the government throughout the case."
The court also instructed the jury, "The
defendants are not required to prove
their innocence or to produce any
evidence." Id. We presume that juries
follow instructions. See United States v.
Clarke, 227 F.3d 874, 883 (7th Cir.
2000); United States v. Adeniji, 221 F.3d
1020, 1027 (7th Cir. 2000). Therefore,
even assuming that the prosecutor’s
remark was somehow improper, the district
court’s jury instructions cured any
possible impropriety. See also United
States v. Carraway, 108 F.3d 745, 761
(7th Cir. 1997) (holding that district
court’s repeated instructions to jury not
to consider coconspirators’ guilty pleas
as evidence against defendants cured
impropriety of prosecutor mentioning the
pleas during opening statement).

  Finally, given that the two minor
incidents about which Miller complains
occurred during an 8-day trial in which
the government presented substantial
evidence of her guilt, these alleged
errors, if they were ever to be
considered as errors at all, would have
to be viewed as no more than harmless.

AFFIRMED.

FOOTNOTES

/1 In support of this contention, the government
cites trial transcript vol. 3, para. 147. No
information regarding Weldy’s potential coopera-
tion with the prosecution appears on that page.
An oblique reference to Weldy’s potential testi-
mony appears at transcript vol. 3, para.para.
141-42, where the prosecutor said, "[A] threat by
one party to another party in a case--especially
when that party can be a witness and may well be
a witness--is obviously probative." This, by
itself, is not very substantial evidence that
Weldy was considering becoming a prosecution
witness. Nor does the record contain a proposed
plea agreement corroborating the government’s
contention. But Ms. Miller does not rebut the
government’s allegation, so we will assume that
it is true.

/2 The prosecutor asked witness Dorinda Wright about
the threat:

Q. All right. Now, have you spoken to Mr. Weldy in
the last few weeks about a threat that he re-
ceived?

A. Yes, sir.

Q. Approximately when did Mr. Weldy tell you about
this threat?

MR. VOYLES [Miller’s attorney]: Judge, may we--

A. It’s been a week or two ago. Maybe a little
longer.

Q. What did Mr. Weldy tell you?

MR. VOYLES: Objection, Your Honor. Can we ap-
proach the bench?

THE COURT:    No. I am going to excuse the jury on
this one.

Tr. vol. 3 at para. 137.

/3 The prosecutor made this remark in response to an
objection to his cross-examination of Miller. The
prosecutor was asking Miller why she disregarded
the Medicaid manual in preparing prescription
billing forms:

Q. Who are these field representatives that told
you contrary to the manual to bill in milligrams
in that quantity box?

A. Kim Stovall.

Q. What’s that again?

A. Kim Stovall was our provider rep in 1996 and
1997.

Q. And she told you to bill in milligrams?

A. Yes.

Q. Has she testified here?

A. No.

MR. THIROS [Weldy’s attorney]: Objection, Your
Honor. That’s improper, I think.

MR. SCHMID [Prosecutor]: No, Your Honor. They
have subpoena power just like the government.
They can put on a case.

MR. VOYLES [Miller’s attorney]: Wait a minute,
Your Honor. That’s certainly an inappropriate
comment to make. That’s contrary to the instruc-
tions.

MR. SCHMID:    Not at all, Your Honor.
THE COURT: Let’s get on to something else in the
interest of caution. It may be a close call. The
burden here is on the government. There is no
question about that.

MR. SCHMID: There is no question about that, but
they have subpoena power.

Tr. vol. 7 at para.para. 81-82.
