                             In the

United States Court of Appeals
              For the Seventh Circuit
                         ____________

Nos. 06-2375, 06-2376 & 06-2421

U NITED S TATES OF A MERICA,
                                                 Plaintiff-Appellee,
                                 v.

R ONALD M IKOS,
                                             Defendant-Appellant.
                         ____________
        Appeals from the United States District Court for the
          Northern District of Illinois, Eastern Division.
           No. 02 CR 137—Ronald A. Guzmán, Judge.
                         ____________

    A RGUED A UGUST 16, 2007—D ECIDED A UGUST 25, 2008
                         ____________



  Before E ASTERBROOK, Chief Judge, and P OSNER and
E VANS, Circuit Judges.
  E ASTERBROOK, Chief Judge. 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 surger-
ies. When officials became suspicious, Mikos arranged for
some of his elderly patients (many of whom were not
2                          Nos. 06-2375, 06-2376 & 06-2421

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 per-
formed 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 tes-
tify—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,
Nos. 06-2375, 06-2376 & 06-2421                            3

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 trans-
ferred 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 bul-
let—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
4                          Nos. 06-2375, 06-2376 & 06-2421

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 system-
atically to contact all of his patients who had been subpoe-
naed 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 approx-
imately 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 re-
vealing. Motive, opportunity, and ability allowed a jury
to find that Mikos killed Brannon to prevent her from
testifying—and that is a capital crime.


                             I
  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
Nos. 06-2375, 06-2376 & 06-2421                             5

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. Michi-
gan, 547 U.S. 586 (2006) (exclusion unjustified when the
error is not in the causal chain leading to the evidence).
6                          Nos. 06-2375, 06-2376 & 06-2421

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 autho-
rized 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).
Nos. 06-2375, 06-2376 & 06-2421                             7

  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 disappear-
ance 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
8                           Nos. 06-2375, 06-2376 & 06-2421

agent was not qualified as an expert under Fed. R. Evid.
702, Mikos maintains, because there is no scholarly litera-
ture 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 ad-
missibility. See Fed. R. Evid. 104(a); United States v. Marti-
nez de Ortiz, 907 F.2d 629 (7th Cir. 1990) (en banc).)
   District judges may admit testimony resting on “scien-
tific, 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.
Nos. 06-2375, 06-2376 & 06-2421                               9

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 pro-
duce 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 such-
and-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 Identifi-
cation, 6 Colum. Sci. & Tech. L. Rev. 2 (2005). Tangren’s
10                         Nos. 06-2375, 06-2376 & 06-2421

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 reliable given its limita-
tions. The district court did not abuse its discretion in
denying Mikos’s request to exclude the evidence under
Fed. R. Evid. 403 as unduly prejudicial. The jury was
entitled to hear Tangren’s evidence.
  4. Having allowed Tangren to testify, Mikos insists, the
judge should have granted his motion to hire ballistics
expert David LaMagna at public expense. Both the Con-
stitution, see Ake v. Oklahoma, 470 U.S. 68 (1985), and the
Criminal Justice Act, see 18 U.S.C. §3006A(e)(1), entitle
defendants to the services of experts necessary to meet
the prosecution’s case. The projected expense to retain
LaMagna, at $250 an hour, would have exceeded the
presumptive ceiling for an expert’s services ($7,500, see
18 U.S.C. §3599(g)(2), since this is a capital case), and the
district court told Mikos that he would approve
another ballistics expert whose rates were lower, or whose
travel time would have been less. (Experts bill for their
travel; that’s one reason why LaMagna’s total fees
would have exceeded the cap.) Mikos asked the court to
let him hire John R. Nixon in lieu of LaMagna. The court
gave its permission. Nixon examined the bullets and
prepared a report—but the defense did not put Nixon on
the stand or use his report as evidence. (It did proffer an
unreasoned statement by Nixon that “there can be no
Nos. 06-2375, 06-2376 & 06-2421                            11

guaranty of consistency of land & groove measurements
between crime laboratories” and that “suspect data
[therefore] must have found its way into” the FBI’s data-
base, but these assertions did not respond to any issue
in the case—and, given the absence of reasoning, the
statement was not admissible.)
  Mikos’s appellate argument that the district judge
should have let him hire LaMagna is a dud. Abstract
propositions about entitlement to expert assistance go
nowhere when the defendant had an expert. Mikos does not
tell us what LaMagna could have done that Nixon was
unable to do; for that matter, he does not tell us why he
did not use Nixon as an expert. Nixon could have
relied not only on his own work but also on LaMagna’s
published work, which critiques using ballistics data to
make unique matches of bullets to guns (something that, to
repeat, Tangren did not do). See Joan Griffin & David
LaMagna, Daubert Challenges to Forensic Evidence: Ballistics
Next on the Firing Line, 26 Champion 20 (Sept./Oct. 2002).
Champion, a glossy publication for the defense bar, is not
exactly a scholarly journal, and this short article was not
refereed, but an expert still could have relied on it to
the extent that it contained useful information about the
FBI’s rifling-characteristics database. See Fed. R. Evid. 703.
  For all we know, Nixon ended up agreeing with Tangren,
and perhaps LaMagna would have done so too. Neither
the Constitution nor the Criminal Justice Act entitles a
defendant to the best (or most expensive) expert, or to
more than one expert if the first does not reach a conclu-
sion favorable to the defense. Just as a defendant who
12                          Nos. 06-2375, 06-2376 & 06-2421

relies on counsel at public expense must accept a compe-
tent lawyer, rather than Clarence Darrow, see Morris v.
Slappy, 461 U.S. 1 (1983), so a defendant who relies on
public funds for expert assistance must be satisfied with
a competent expert. Mikos does not argue that Nixon
was incompetent (or even below average), so he has
received his due.
  5. Mikos wanted a jury-selection expert as well as a
ballistics expert. The district judge turned him down flat
on this second request, observing that the Criminal Justice
Act and §3599 (21 U.S.C. §848(q) until its recodification
in 2006) provide for experts on issues that affect guilt and
sentencing. As far as we can tell, no district court (and
certainly no court of appeals) has held that there is a
statutory or constitutional entitlement to a jury-selection
expert at public expense.
  The Constitution entitles every defendant to a fair trial
before an unbiased jury. The function of a jury-selection
expert, however, is to bias the jury in his employer’s favor.
Whether this is a genuine field of expertise is open to
doubt; some studies conclude that people who use jury-
selection experts do no better (and may do worse) than
those who do not. See Michael O. Finkelstein & Bruce
Levin, Clear Choices and Guesswork in Peremptory Challenges
in Federal Criminal Trials, 160 J. Royal Statistical Society A
275 (1997); Hans Zeisel & Shari Seidman Diamond, The
Effect of Peremptory Challenges on Jury and Verdict: An
Experiment in a Federal District Court, 30 Stan. L. Rev. 491
(1978). No matter. There is no right to an expert whose
goal is to produce jurors who favor one side, and whose
Nos. 06-2375, 06-2376 & 06-2421                          13

leanings (doubtless slight, or they would not take ex-
pertise to ferret out) are undetectable to the other side,
and thus will not lead to challenges for cause or peremp-
tory strikes.
  Perhaps one could put a better face on this and say that
the goal of a jury-selection expert is to find and expose
those subtle signs of bias in the venire that might elude
counsel (and the district judge) unless detected in a
scientific manner. If a prosecutor retains a jury-selection
expert, a defendant might be able to show the need for
one to level the playing field. But the prosecutor did not
use a jury-selection expert in this case, and Mikos was not
entitled to one. That could only lead to an arms race,
and a race to introduce concealable biases into juries is
not one that should be waged. See Miller-El v. Dretke, 545
U.S. 231, 266–73 (2005) (Breyer, J., concurring); Batson v.
Kentucky, 476 U.S. 79, 102–03 (1986) (Marshall, J., concur-
ring).
  6. One final issue before we turn to the sentences. Mikos
submits that the evidence was insufficient to support the
jury’s verdict that he murdered Brannon. No one saw
him do it; the gun was not found; the killer left no finger-
prints. And what was his motive?, counsel inquires. True,
Mikos wanted to stay out of jail for Medicare fraud, but
his lawyer observes that Mikos had submitted bogus
claims on behalf of so many patients that he could not
possibly have thought that he could silence them all. But
he didn’t need to. It would have been enough to silence
the patients whose evidence or testimony had been
sought. Mikos set out to do just that—by persuasion, by
14                         Nos. 06-2375, 06-2376 & 06-2421

submitting forged affidavits in the patients’ names, and,
the jury could conclude, by killing the one mentally
competent patient who had made it clear that she would
assist the prosecutors. Mikos may have been deluded (or
desperate) in thinking that, if he could prevent an
initial batch of patients from producing evidence of fraud,
then the investigation would be called off—for, by the time
the grand jury started issuing subpoenas, agents had
inspected his books and concluded that all of his bills had
been fabricated—but as long as Mikos thought that he
could divert the investigators to easier targets he had a
motive.
  As for the lack of witnesses and fingerprints: The open-
ing paragraphs of this opinion say all that is necessary. The
evidence, though circumstantial, is damning. Alternative
explanations, such as a burglary that went awry, are
implausible; nothing was taken from (or even disturbed in)
Brannon’s apartment. Jurors learned that Mikos had been
purchasing guns in quantity; agents found not only a
storage unit full of weapons but also more guns in the
ceiling tiles of his home, and still more hidden under his
rafters. A sensible jury could find beyond a reasonable
doubt that Mikos shot Brannon in cold blood, with pre-
meditation, to prevent her from testifying against him.


                             II
  1. On the 24 non-capital convictions, Mikos received
sentences of 60 months’ imprisonment on each of
15 counts, and 78 months’ imprisonment on each of the 9
remaining counts. All 24 sentences run concurrently and
Nos. 06-2375, 06-2376 & 06-2421                            15

include restitution of $1.8 million. Mikos contends that the
district court overestimated the Medicare program’s
financial loss and as a result set the imprisonment and
restitution too high.
  During sentencing, Mikos’s lawyer conceded that his
total bills to the Medicare program were approximately
$1.8 million. This led to a 16-level increase in his offense
score under U.S.S.G. §2B1.1(b)(1)(I) (range from $1 million
to $2.5 million). That concession is not dispositive, Mikos
now contends, because Medicare might not have paid all
of these claims, and some of them may have been legiti-
mate. Whether Medicare paid is irrelevant to the loss
calculation under §2B1.1, however, because that section
deals with intended loss. Mikos billed the Medicare pro-
gram for $1.8 million; that’s the intended loss whether
Medicare paid or not—unless some of the claims were
legitimate. But the evidence shows that not one penny
was payable. Mikos’s appellate lawyer confuses
legitimate services with legitimate claims. Mikos doubtless
provided his patients with many services, such as remov-
ing ingrown toenails, but none of these routine services
is covered by the Medicare program. He billed Medicare
for podiatric surgery, and the record shows that he
never performed any surgery. Thus all of the claims for
payment from the Medicare program were illegitimate
and the intended loss was $1.8 million.
  Restitution is a different matter. It depends on actual
rather than intended loss. See, e.g., United States v. Webber,
No. 07-2117 (7th Cir. July 29, 2008), slip op. 30–38; United
States v. Caputo, 517 F.3d 935, 943 (7th Cir. 2008); United
16                          Nos. 06-2375, 06-2376 & 06-2421

States v. George, 403 F.3d 470, 474 (7th Cir. 2005). It should
have been a simple matter for the prosecution to show
how much the Medicare program actually paid on
Mikos’s claims, but that evidence is not in the record. The
burden of showing loss is on the prosecutor, so the
award of restitution is vacated and must be recalculated
on remand.
  2. According to Mikos, the Federal Death Penalty Act,
18 U.S.C. §§ 3591–98, is unconstitutional because it violates
the Indictment Clause of the fifth amendment (the Attor-
ney General, not a grand jury, determines whether to
seek capital punishment for a qualifying offense, and
the statute does not require aggravating factors to be
included in an indictment), because failure to apply the
Federal Rules of Evidence and use of hearsay in sentencing
violate the due process clause, and because the statutory
aggravating factors are incomprehensible. These three
arguments against the statute have been made in this
circuit, and in others, to no avail.
  The Indictment Clause argument has been made and
rejected in United States v. Robinson, 367 F.3d 278, 290 (5th
Cir. 2004); United States v. Allen, 406 F.3d 940, 949 (8th
Cir. 2005) (en banc); and United States v. Brown, 441 F.3d
1330, 1367 (11th Cir. 2006). The argument about evidence
has been made and rejected in many circuits. See, e.g.,
United States v. Corley, 519 F.3d 716, 723–27 (7th Cir. 2008);
United States v. Fulks, 454 F.3d 410, 438 (4th Cir. 2006). The
Supreme Court held in Williams v. New York, 337 U.S. 241
(1949), that the Constitution does not require application of
the rules of evidence in capital sentencing, and in all the
Nos. 06-2375, 06-2376 & 06-2421                            17

ferment about capital punishment in the years since
then the Court has never suggested any inclination to
overrule Williams. See Wiggins v. Smith, 539 U.S. 510, 536–37
(2003). The vagueness argument has been made and
rejected in United States v. Webster, 162 F.3d 308, 354 (5th
Cir. 1998), among others. After Jones v. United States, 527
U.S. 373 (1999), rejected a functionally identical vagueness
challenge, there is no room for maneuver. We rely on
these decisions and see no constitutional reason why
Mikos cannot be sentenced to death for his premeditated
murder of a witness.
  Only the indictment question calls for even brief com-
ment. Walton v. Arizona, 497 U.S. 639 (1990), held that
aggravating factors that make a person eligible for capital
punishment are sentencing considerations that need not
be alleged in an indictment. The Federal Death Penalty
Act, enacted in 1994, assumed that Walton is correct and
does not require aggravating factors to appear in the
indictment. But in 2002 the Supreme Court overruled
Walton and held that aggravating factors that make a
crime death-eligible (though not those used in a later
balancing procedure, see United States v. Fell, 2008 U.S.
App. L EXIS 13831 at *105–11 (2d Cir. June 27, 2008) (collect-
ing cases)) must be charged in the indictment. See Ring v.
Arizona, 536 U.S. 584 (2002), a decision much influenced
by Apprendi v. New Jersey, 530 U.S. 466 (2000). The indict-
ment of Mikos includes several aggravating factors. All
requirements of Ring and Apprendi have been satisfied.
  Nonetheless, Mikos insists that the statute must be
declared unconstitutional because it does not demand
18                         Nos. 06-2375, 06-2376 & 06-2421

that the grand jury find the aggravating factors. He then
contends that the statute is not severable, so that to
find one constitutional flaw is to knock out the basis of all
capital punishment. The argument goes wrong at the
first step (and we need not decide whether the severability
step is wrong as well), because Ring does not hold or
imply that any part of the Federal Death Penalty Act is
unconstitutional.
  Ring does say that the Constitution demands that certain
things be in an indictment if a capital sentence is to be
valid, but the federal statute does not forbid aggravating
factors in an indictment. It is silent on whether they are
included. If the indictment complies with Ring, no constitu-
tional error occurs. There is nothing to sever. As long as a
defendant’s rights under Ring are honored (as Mikos’s
were), it is a matter of indifference whether the rights
were honored as a matter of statutory command or prose-
cutorial precaution. We have held much the same thing
for 21 U.S.C. §841. Defendants argued after Apprendi
that §841 is unconstitutional because it does not require
drug quantities to be charged in indictments. We held, to
the contrary, that §841 is silent on the subject, and that
prosecutors are free to include all allegations needed to
comply with Apprendi. Putting in the indictment more
than the statutory floor does not imply that any law is
unconstitutional. See United States v. Brough, 243 F.3d 1078
(7th Cir. 2001). Cf. United States v. Cotton, 535 U.S. 625
(2002).
 Just so with the Federal Death Penalty Act. Title 18 says
what must be proved, and sometimes it says how; other
Nos. 06-2375, 06-2376 & 06-2421                          19

sources, including the Constitution, the Federal Rules of
Criminal Procedure, and the common law, add details
about which tasks fall to prosecutors, judges, grand juries,
and petit juries. That one source of law is silent on a
procedural issue, such as what an indictment must
contain, just leaves it to another source. Look at 18 U.S.C.
§1347, the Medicare-fraud statute that Mikos has been
convicted of violating. There is not a peep in §1347 (or
almost any other statute) about what must be in an in-
dictment, but no one would say that this makes the
whole Criminal Code a rollicking violation of the Indict-
ment Clause. Other sources of law supply details about
what indictments (and other legal documents) contain, so
that defendants’ constitutional rights are fully respected.
   3. The Federal Death Penalty Act provides that, if a
defendant is convicted of a capital crime and the prosecu-
tor requests the death penalty, a jury must decide at a
sentencing proceeding whether the accused had the
necessary mental state and at least one aggravating
factor exists. If the jury unanimously answers both of
these questions in the affirmative, see §3593(d), it must
balance all considerations to determine whether capital
punishment is appropriate. We call these “considerations”
rather than “factors” because, although there is a statutory
list of “factors” that a jury must consider (if raised by a
party), there is no limit to the number of case-specific
(“non-statutory”) considerations that may influence a jury.
  The two statutory aggravating factors were that Mikos
substantially planned and premeditated the murder,
§3592(c)(9), and that Brannon was “particularly vulnerable
20                         Nos. 06-2375, 06-2376 & 06-2421

due to . . . infirmity”, §3592(c)(11). Brannon had retired
from nursing because she had become so obese that she
needed assistance to rise from a chair. (She had other
conditions commonly associated with obesity.) She
could not have run away or resisted an intruder. The
jury found both of these aggravating factors unanimously
and beyond a reasonable doubt. It also found three non-
statutory aggravating considerations. One was that
Mikos killed Brannon to prevent her from testifying
against him. The second was that the crime caused loss
to Brannon’s friends, family, and co-workers. The third
was that Mikos had not demonstrated remorse for his
crimes. All of these were found unanimously, and beyond
a reasonable doubt.
  Mikos asked the jury to find 33 mitigating considerations.
Several of these drew majority support. Eight members
of the jury concluded, for example, that “Ronald Mikos
has a loving relationship with his son, Ronald Mikos,
Jr.”; nine jurors concluded that Mikos’s execution would
cause his son “great pain and emotional distress.” (A
majority did not make similar findings for Mikos’s other
children.) A single juror concluded that Mikos’s sub-
stance abuse had led to mental disorders that were mitigat-
ing (he submitted evidence that he began abusing prescrip-
tion painkillers in the mid 1990s and began drinking
heavily in 2001.) Two jurors concluded that the civil
investigations into Mikos’s fraud had caused him stress
and led to drug and alcohol abuse, which was a
mitigating consideration. Five jurors concluded that the
delay in completing the civil investigation was a
Nos. 06-2375, 06-2376 & 06-2421                           21

mitigating consideration. But only four jurors supported
the statement: “Ronald Mikos is a human being.”
  After making all of these findings, the jurors voted
unanimously that Mikos be executed for killing Joyce
Brannon.
  Mikos contests two of the five aggravating factors or
considerations: vulnerable victim and lack of remorse. We
begin with the first of these, because it is one of the two
statutory aggravating factors that the jury found. (The non-
statutory aggravating circumstances are less important.)
The prosecutor contends that some of Mikos’s arguments
on sentencing have been forfeited because counsel did
not make the appropriate objection at the appropriate
time, but we consider all of the appellate arguments on
the merits lest we see them again in the guise of a conten-
tion that Mikos received ineffective assistance of counsel,
despite the diligent work done on his behalf.
  a. Mikos might perhaps have argued that six well-placed
bullets will kill anyone, so vulnerability cannot be in
issue, but he does not take that line. Brannon was vulnera-
ble, not because she was especially susceptible to bullets,
but because she was immobile and could neither run
nor fight back when an intruder broke into her apartment.
Nor could she seek help in whatever period of conscious-
ness remained to her after the intruder had emptied his
gun into her back and neck, piercing her lungs and sever-
ing her carotid artery. Both United States v. Sampson, 486
F.3d 13, 48–49 (1st Cir. 2007), and United States v. Paul,
217 F.3d 989, 1001–02 (8th Cir. 2000), hold that disabilities
making it hard for the victim to resist or flee support a
vulnerable-victim finding under §3592(c)(11).
22                         Nos. 06-2375, 06-2376 & 06-2421

   Our dissenting colleague asserts that Brannon’s disabili-
ties are irrelevant because “[s]he could not have outrun
[Mikos’s] bullets even if she had been an Olympic sprinter”
(dissent at 31) and that her doom was sealed once “he was
standing behind her” (id. at 30). Mikos himself does not
contend this—not in the district court, and not in this
court. Our colleague’s position ignores everything that
occurred before Mikos was standing inches from
Brannon with a loaded revolver. If Mikos had killed
Brannon with a sniper rifle from across the street, and the
first sign of the attack had been a bullet in her head, then
her disability would indeed be immaterial. But Mikos
instead entered her apartment and walked up to her
chair. She was powerless to escape, because she was
unable to rise. Even a trained user of handguns has
trouble hitting a moving target, so had Brannon been able
to run out of her apartment as Mikos entered, she might be
alive today. But she could not rise; her physical condition
made her a sitting duck. That’s why Mikos has never
ventured the argument that our dissenting colleague
advances. The standards of plain error, see United States
v. Olano, 507 U.S. 725, 733–37 (1993), have not been satis-
fied. Whether Brannon’s obesity contributed to her
demise is a factual question, not a legal question for ap-
pellate judges, and the evidence permitted a rational jury
to find as this jury did.
  Instead of opposing the vulnerable-victim factor alto-
gether, Mikos contends that the prosecutor overstepped
in one part of his argument to the jury. A medical examiner
testified that Brannon bled to death (both internal hemor-
rhaging and loss from the severed artery) over the course
Nos. 06-2375, 06-2376 & 06-2421                           23

of three or four minutes. In closing argument the prosecu-
tor asked the rhetorical question “What was [Brannon]
thinking when she sat there for three to four minutes
dying? . . . What was she thinking? She couldn’t move, she
couldn’t cry out, she couldn’t run, and the reason she
couldn’t do those things was due to her disability.” This
was a plea for sympathy, an appeal to emotions rather
than reason, Mikos maintains. Perhaps Brannon fell
quickly into unconsciousness, but, even if she did not, the
argument goes, a prosecutor should stick to the facts
rather than speculate about a victim’s mental processes.
  ”What was she thinking?” is indeed a bad question to
have asked, even rhetorically, for the reasons Mikos has
articulated. But it is impossible to believe that this brief
foray could have affected the jury’s verdict. Missteps
during closing argument are common, because these
arguments are unscripted. They justify a new trial only
when they are likely to overwhelm other, appropriate,
considerations. See Darden v. Wainwright, 477 U.S. 168,
179–83 (1986). Here the jury’s attention was focused by
judge and counsel alike on the right question: whether
Brannon’s obesity hindered her ability to resist or flee.
The jury’s verdict is reliable.
  b. Mikos challenges the lack-of-remorse consideration
on two fronts. He contends that prosecutorial statements
about Mikos’s remorse-free demeanor in court amount
to a penalty for his failure to testify. And he maintains
that the evidence did not support this factor. Relying on
United States v. Roman, 371 F. Supp. 2d 36 (D. P.R. 2005), he
argues that only gloating or boastfulness, after the fashion
24                         Nos. 06-2375, 06-2376 & 06-2421

of Leopold and Loeb, show a meaningful “lack of re-
morse.”
  There is a sense in which “lack of remorse” overlaps with
“the defendant did not plead guilty”, but the Supreme
Court has approved this factor, see Zant v. Stephens, 462
U.S. 862, 886 n.22 (1983), which differs in principle from
a penalty for failure to incriminate oneself. It is common,
and acceptable, to give lower sentences to persons who
confess and show remorse than to persons who do not;
the Sentencing Guidelines institutionalize this with a two-
level or three-level reduction for acceptance of responsi-
bility. U.S.S.G. §3E1.1. Mikos fought every charge every
step of the way. That was his right, but in the process he
showed no remorse, compared with a person who con-
ceded some culpability (if only on the fraud charges,
which were indisputable). If it is proper to take confes-
sions, guilty pleas, and vows to improve one’s life into
account when deciding whether a murderer should be
put to death—and it is unquestionably proper for a judge
or jury to do so, see Williams v. Taylor, 529 U.S. 362, 398
(2000)—then it must also be proper for the prosecutor to
remind the jury when none of these events has occurred.
The consequence of no remorse is built into the Guidelines,
see United States v. Klotz, 943 F.2d 707 (7th Cir. 1991); in
a capital case, by contrast, nothing is built in, so what
happens automatically as a result of §3E1.1 must be
argued for. The two are equally appropriate.
  The prosecutor’s main theme was not the absence of a
guilty plea, or Mikos’s silence (= the lack of an apology) in
open court, but the fact that Mikos had not done any-
Nos. 06-2375, 06-2376 & 06-2421                          25

thing to reduce or redress the hurt his crimes had caused.
He had not, for example, covered the costs of Brannon’s
burial, leaving these to her family and her church. Instead
of taking steps to make good the losses for which he
was responsible, Mikos has used his free time in jail to try
to swindle the Medicare fund out of more money. He
sent off documents asking that payment be made to a
differently named entity at a different address, hoping
that this would evade administrative orders forbidding
payment to the name of his medical practice on file with
the bureaucracy. He continued contacting prospective
witnesses and attempting to persuade them to keep silent
or to tell lies on his behalf. Someone who carries on with
crime, even after being caught and imprisoned, can be
called remorseless without stretching the term. He is
both more dangerous and less capable of incapacita-
tion by imprisonment than is someone who genuinely
regrets his misdeeds.
  Remorse means regret and contrition. Roman surely is
right to say that bragging about one’s criminal escapades
shows lack of remorse, but it is mistaken to say that this
is the only way to show the absence of remorse. Letting
victims bear the loss of crime, while trying to tamper
with witnesses to escape conviction and commit more
wrongs, also signal lack of remorse, and that demonstra-
tion was made here. The jury convicted Mikos of obstruct-
ing justice, not just of fraud and murder.
  But let us suppose that this is wrong and that lack of
remorse has not been made out as a valid non-statutory
aggravating consideration. Lack of remorse is a non-
26                         Nos. 06-2375, 06-2376 & 06-2421

statutory consideration; it did not play a role in making
Mikos eligible for the death penalty. The Supreme Court
held in Brown v. Sanders, 546 U.S. 212 (2006), that when
an aggravating consideration other than one essential to
death-eligibility is set aside, the sentence still may be
affirmed if all of the evidence that supported this con-
sideration would have been admitted anyway, or if the
court conducts an independent review and concludes
that the verdict remains appropriate without the
invalid consideration. Brown arose on collateral review of
a state court’s judgment, but most of what Brown says
concerns how an appellate court should proceed on
direct review of a death sentence and hence is equally
applicable within the federal system. The Court’s opinion
in Jones, 527 U.S. at 402–05, arises from direct review of a
federal death sentence and reaches a similar conclusion,
holding that a federal court of appeals may declare an
error concerning an aggravating consideration harmless
if the judges are convinced that the jury would have
returned the same verdict had the invalid aggravating
consideration not been submitted at trial.
  Mikos does not contend that the “lack of remorse”
consideration put before the jury any evidence that it
ought not have received. Most of Mikos’s contentions
address the prosecutor’s closing argument, which came
after all of the evidence. The jury was entitled to learn
about Mikos’s efforts to continue collecting from Medicare
(that was relevant to the substantive charges, and the
evidence came in during the trial on the merits) and his
efforts to influence witnesses from prison (ditto: this was
relevant to several of the substantive counts). Mikos’s
Nos. 06-2375, 06-2376 & 06-2421                          27

demeanor in court—whether he was stony-faced or teary-
eyed—was already known to the jurors.
   So all we have is the prosecutor’s argument about lack of
remorse. Take away those few pages of transcript, and the
weight of evidence remains. Four aggravating factors or
considerations are solid. The facts of this cold-blooded
execution of a potential witness dominate. Prosecutorial
comments about Mikos’s demeanor in court and lack of
visible remorse strike us, and likely struck the jurors, as
gilding the lily. Many a problem in a criminal prosecution
is caused by such rhetorical excesses. Prosecutors cannot
know what will carry weight with jurors, so they are
tempted to try every avenue. When they do, that opens
the door to claims of error and appellate second-guessing.
That’s why the doctrine of harmless error is essential.
If error occurred in this penalty proceeding, it was harm-
less.
           A FFIRMED ON ALL SUBJECTS EXCEPT RESTITUTION,
                                    WHICH IS R EMANDED .




  P OSNER, Circuit Judge, concurring in part and dissenting
in part. I agree that the defendant’s conviction should be
upheld and I join that part of the majority opinion. But
he is entitled to a new death-penalty hearing. The prosecu-
tor was not content to point out that the murder was the
result of “substantial planning and premeditation to
28                         Nos. 06-2375, 06-2376 & 06-2421

cause the death of a person or commit an act of terrorism,”
which the Federal Death Penalty Act explicitly allows the
jury to deem a factor entitling it to impose the death
penalty. 18 U.S.C. § 3592(c)(9). He also argued that the
victim “was particularly vulnerable due to old age, youth,
or infirmity,” another explicit statutory factor,
§ 3592(c)(11), and that (under the radically unspecific
statutory catch-all—“any other aggravating factor [that is,
any other factor, besides those specified in the statute,
that a jury can treat as a reason for sentencing the defen-
dant to death] for which notice has been given,” § 3592(c)
following (16)) the defendant had shown a lack of remorse
for the murder. The prosecutor advanced two other
nonstatutory factors as well: that the defendant had
killed his victim to prevent her from testifying against
him, and that the murder had caused emotional harm to
the victim’s family and friends; but these add little to the
fact that the victim was killed and the murder planned.
  The prosecutor’s arguments based on victim vulnerabil-
ity and the defendant’s lack of remorse were unsound,
and I do not think it is possible to find beyond a reasonable
doubt (the applicable standard, 18 U.S.C. § 3595(c)(2)) that
the jury would have sentenced the defendant to death
even if those arguments had not been made. There is
much fussing in the briefs over the defendant’s failure to
object to the arguments, but that misses the point. Even if
there was nothing wrong with the prosecutor’s making
the arguments, they don’t provide a basis for a finding
beyond a reasonable doubt that the victim was vulnerable
or that the defendant lacked remorse.
Nos. 06-2375, 06-2376 & 06-2421                            29

  Vulnerability is relative to the nature of the crime. United
States v. Sampson, 486 F.3d 13, 48-49 (1st Cir. 2007). A
closeted homosexual is particularly vulnerable to being
blackmailed, United States v. Lallemand, 989 F.2d 936, 939
(7th Cir. 1993); United States v. Hughes, 411 F.2d 461, 462-63
(2d Cir. 1969), but he is not particularly vulnerable to
credit-card fraud. The fact that the victim in this case was
a 5-foot 3-inch woman who weighed nearly 300 pounds
might have made her particularly vulnerable to solicita-
tions for fraudulent weight-loss programs, to mugging,
and to a variety of other crimes, but not to being shot to
death in her apartment. In Sampson, the victim was fleeing
from a knife-wielding assailant and might have escaped
had it not been that he had “undergone open-heart surgery
(a quintuple bypass) approximately one year prior to his
encounter with Sampson; that he was overweight and
became short of breath easily; and that he had difficulty
walking fifteen feet shortly before his murder.” 486 F.3d at
49. In United States v. Paul, 217 F.3d 989, 1001-02 (8th Cir.
2000), the victim was 83 years old and the court thought
he might have escaped or beaten off his attackers had
he been younger. This case, in contrast, is like United
States v. Johnson, 136 F. Supp. 2d 553, 560 (W.D. Va. 2001),
where “the victim was killed instantaneously when the
explosive device detonated. Nothing about [her] physical
condition weakened her capacity to resist the fatal blast.”
See also Francis v. State, 808 So. 2d 110, 139 (Fla. 2001).
  It is true that the younger and stronger the intended
victim of a shooting, the more likely he is to be able to
resist effectively or survive his wounds. But if this argu-
ment is pressed hard enough, everyone over 50 would
30                          Nos. 06-2375, 06-2376 & 06-2421

be deemed a vulnerable victim in any case involving the
use of force. Vulnerability must be assessed on the basis
of the relation of the victim’s condition to the particular
circumstances of the crime, Jones v. United States, 527 U.S.
373, 401-02 (1999), as in United States v. Johnson, supra.
  So although the judge properly instructed the jury that
the government had to prove beyond a reasonable
doubt that “any infirmity which you find made [the
victim] particularly vulnerable must somehow have
contributed to her death,” see United States v. Sampson,
supra, 486 F.3d at 34, missing from this case is evidence that
the victim’s vulnerability did contribute to her death—
evidence that a healthier victim might have survived
being shot six times in the back at point-blank range or
that the defendant would not have tried to kill her had
she been healthier because he would have been afraid that
she would grab the gun from him. The government
lawyer did speculate at the argument in this court that
had the victim been of normal weight she might have
grabbed the gun from the defendant’s grasp, but that is
fanciful in the extreme, especially as he was standing
behind her.
  I do not mean to understate the victim’s disability
caused by her obesity. She had difficulty getting up from
a sitting position and needed canes for walking, and she
used a catheter because she had trouble getting to the
bathroom in time when she had to urinate. She had rolls of
abdominal fat hanging down so low that they were at the
level of her knees, and the fat had become infected and
had required surgery to save her life from an infection. She
Nos. 06-2375, 06-2376 & 06-2421                           31

had asthma and arthritis and leg cramps and for the
accumulation of her ailments took about 15 medications,
some of which caused drowsiness and fatigue. Although
neither singly nor in combination did her ailments have
anything to do with her vulnerability to being shot fatally
from behind at close range, the category of nonstatutory
aggravating factors is open-ended and the prosecutor
could have argued that to kill a person already so afflicted
was especially cruel and ugly, like the “brutal and sense-
less execution style murder of a helpless child” in Black v.
Bell, 181 F. Supp. 2d 832, 863 (M.D. Tenn. 2001). There are
intimations of such an argument in the prosecutor’s
closing statement to the jury, but he did not ask the jury to
consider this as a factor in aggravation of the defendant’s
conduct; he relied instead on the statutory factor of vulner-
able victim, and that was a mistake; the average person
would not have escaped in this case with his life. Having
studied the church’s schedule, the defendant was able to
sneak in when he knew that the victim would be alone.
Once he was inside the church with a gun and determined
to kill her, her death was inevitable, no matter what her
physical condition. She could not have outrun his bullets
even if she had been an Olympic sprinter.
  The aggravating factor to which the prosecutor devoted
the bulk of his closing argument was lack of remorse. He
pointed out that after killing his victim the defendant had
continued to engage in the Medicare fraud that had
motivated the murder. To deem that a circumstance in
aggravation was double counting. The murder was a result
of substantial planning and premeditation because it was
a means of trying to defeat the fraud prosecution and
32                         Nos. 06-2375, 06-2376 & 06-2421

enable the defendant to continue engaging in fraud. The
planning was an aggravating factor that entitled the jury
in the exercise of its discretion to sentence him to death,
but it was not evidence of a lack of remorse distinct from
any inference of remorselessness that one would draw
from any murder that had been planned rather than being
spontaneous.
  The prosecutor told the jury that the defendant is “sitting
20 feet away from you and there’s nothing, no remorse
whatsoever, because he thinks he got away with it.” (An
echo of Camus: “And has he uttered a word of regret for
his most odious crime? Not one word, gentlemen. Not once
in the course of these proceedings did this man show the
least contrition.” Albert Camus, The Stranger 126 (1954
[1944]).) Later the prosecutor added that the defendant is
“sorry he got caught, but he’s not sorry that he shot [the
victim]. The only ramification of that as he’s sitting oppo-
site you right now, nothing else in this man’s heart, not a
single thing. He has no remorse for what he did.” The
only inference the jury could have drawn (for it was
given no guidance by the judge, who said about remorse
only that the government alleged “that defendant has
demonstrated a lack of remorse for his criminal con-
duct”—which might have been taken to mean that it could
impose the death penalty because of the defendant’s lack
of remorse for committing Medicare fraud) was that his
failure to confess to the murder in open court showed that
he lacked remorse. Had he confessed, however, the jury
might still have imposed the death penalty and he would
have given away his colorable (though ultimately unsuc-
Nos. 06-2375, 06-2376 & 06-2421                             33

cessful) claim that the government had failed to prove
his guilt beyond a reasonable doubt.
   It is true that something like this Hobson’s Choice is
built into the federal sentencing guidelines for noncapital
federal crimes. Ordinarily, to obtain a sentencing dis-
count for accepting responsibility for the crime with
which one is charged one has to plead guilty and thus
give up the chance to contest guilt. U.S. Sentencing Guide-
lines § 3E1.1, Application Notes 2, 3; United States v.
Guadagno, 970 F.2d 214, 226 (7th Cir. 1992); United States v.
Escobar-Mejia, 915 F.2d 1152, 1153 (7th Cir. 1990); United
States v. Williams, 940 F.2d 176, 183 (6th Cir. 1991). But
there is a difference between a defendant’s arguing for
leniency on the basis of his admitting to having com-
mitted the crime with which he is charged and the gov-
ernment’s asking the jury to draw an inference of heinous-
ness from his failure to admit that. United States v. Saunders,
973 F.2d 1354, 1362-63 (7th Cir. 1992). In the first case the
government is giving (or, Booker having demoted the
sentencing guidelines to advisory status, recommending
that the judge give) the defendant a break in exchange
for his sparing the government the expense and uncer-
tainty of a trial. In the second case the judge is asking
the jury to infer remorselessness from the defendant’s
refusal to acknowledge guilt. Yet the motive for that
refusal is likely to be simply that the defendant thinks
he might be acquitted. You can feel remorse for having
committed a crime without wanting to be punished by
life in prison or death. A defendant who accepts responsi-
bility for his crime is not denied a sentencing discount
for that acceptance on the theory that if he were really
34                         Nos. 06-2375, 06-2376 & 06-2421

contrite he wouldn’t be seeking a lighter sentence—he
would reject the acceptance discount.
  One could imagine a legislature’s dissolving the differ-
ence between a punishment increase for proving lack of
remorse and the denial of a punishment decrease for
failing to prove remorse by deeming failure to prove
remorse (a mitigating factor) proof of lack of remorse (an
aggravating factor). But Congress has not done that. The
Federal Death Penalty Act requires proof of an
aggravating factor beyond a reasonable doubt, but proof
of a mitigating factor by a mere preponderance of the
evidence. As the Supreme Court explained in McMillan
v. Pennsylvania, 477 U.S. 79, 100-01 (1986) (citations omit-
ted), “the distinction between aggravating and mitigating
facts has been criticized as formalistic. But its ability to
identify genuine constitutional threats depends on
nothing more than the continued functioning of the
democratic process. To appreciate the difference between
aggravating and mitigating circumstances, it is important
to remember that although States may reach the same
destination either by criminalizing conduct and allowing
an affirmative defense, or by prohibiting lesser conduct
and enhancing the penalty, legislation proceeding along
these two paths is very different even if it might theoreti-
cally achieve the same result. Consider, for example, a
statute making presence ‘in any private or public place’ a
‘felony punishable by up to five years imprisonment’ and
yet allowing ‘an affirmative defense for the defendant
to prove, to a preponderance of the evidence, that he was
not robbing a bank.’ No democratically elected legislature
would enact such a law.”
Nos. 06-2375, 06-2376 & 06-2421                            35

  What would demonstrate a lack of remorse would be
statements (such as bragging about the murder), gestures,
laughter as the murder was described or a grieving
relative testified, or facial expressions that indicated that
the defendant had indeed no regret about having com-
mitted the murder. And thus in Emmett v. Kelly, 474 F.3d
154, 170 (4th Cir. 2007), “when questioned about the
circumstances leading up to the murder, Emmett told
the police that [his victim] was ‘an asshole’ who ‘wouldn’t
loan me no money,’ and that it ‘just seemed right at the
time,’ demonstrating a lack of remorse and callous disre-
gard for human life similar to that demonstrated in the
wake of his killing of the motorcyclist a few years prior.”
See also Thomas v. Gilmore, 144 F.3d 513, 514 (7th Cir. 1998);
Coble v. Quartermanm 496 F.3d 430, 438 (5th Cir. 2007);
United States v. Roman, 371 F. Supp. 2d 36, 48, 50-51 (D.P.R.
2005).
  Mere silence is not enough to demonstrate lack of
remorse. Nor failure to take extraordinary efforts to
demonstrate remorse, such as paying for the victim’s
funeral expenses. Such a failure might defeat the defen-
dant’s effort to plead remorse as a mitigating factor; but the
absence of a mitigating factor cannot automatically be
converted to the presence of an aggravating one.
  Psychologists who set out to study lack of remorse
among prisoners proceeded as follows: “Lack of remorse
was operationalized as either (a) a negative answer to a
question concerning whether the respondent ever
regretted having destroyed or stolen property, or mis-
treated or harmed another person, or wished these major
36                         Nos. 06-2375, 06-2376 & 06-2421

violations of the rights of others had never happened; or
(b) an affirmative answer to a question concerning
whether the respondent felt he or she had the right to
do the behavior(s), or that the people affected by the
behavior(s) deserved what they got.” Risë B. Goldstein,
et al., “Lack of Remorse in Antisocial Personality Disorder:
Sociodemographic Correlates, Symptomatic Presentation,
and Comorbidity With Axis I and Axis II Disorders in
the National Epidemiologic Survey on Alcohol and
Related Conditions,” 47 Comprehensive Psychiatry 289, 291
(2006); see also Martha Grace Duncan, “ ‘So Young and
So Untender’: Remorseless Children and the Expectations
of the Law,” 102 Colum. L. Rev. 1469, 1491-92 (2002). No
effort to do that was made in this case. It would have
helped had the prosecutor or the judge (or for that matter
the defendant’s lawyer) told the jury what “remorse”
means and how its presence or absence can be deter-
mined. They did not.
  Not every premeditated murderer is sentenced to death,
see, e.g., Carmichael v. State, 12 S.W.3d 225 (Ark. 2000);
Schoels v. State, 966 P.2d 735 (Nev. 1998); People v.
Poindexter, 50 Cal. Rptr. 3d 489 (App. 2006)—quite the
contrary. The force of 18 U.S.C. § 3592(c)(9) is not in the
word “premeditation” but in the phrase “substantial
planning”—yet not all murderers who plan their murders
well in advance are sentenced to death either. See, e.g.,
United States v. Russell, 971 F.2d 1098, 1103-04 (4th
Cir. 1992); People v. St. Joseph, 276 Cal. Rptr. 498, 500-01
(App. 1990). Without the aggravating factors found by the
jury in this case, it is uncertain whether the defendant
would have been sentenced to death. In one study, 39.8
Nos. 06-2375, 06-2376 & 06-2421                         37

percent of jurors in capital cases said that a lack of
remorse either made them or would have made them
more likely to vote to impose the death penalty. Stephen P.
Garvey, “Aggravation and Mitigation in Capital Cases:
What Do Jurors Think?,” 98 Colum. L. Rev. 1538, 1560-61
(1998). A study by Theodore Eisenberg et al., “But Was He
Sorry? The Role of Remorse in Capital Sentencing,” 83
Cornell L. Rev. 1599, 1633 (1998), found that lack of
remorse was the third most powerful aggravating factor
in capital sentencing. See also Scott E. Sundby, “The
Capital Jury and Absolution: The Intersection of Trial
Strategy, Remorse, and the Death Penalty,” 83 Cornell L.
Rev. 1557, 1560 (1998); William S. Geimer & Jonathan
Amsterdam, “Why Jurors Vote Life or Death: Operative
Factors in Ten Florida Death Penalty Cases,” 15 Am. J.
Crim. L. 1, 40-41 (l987-1988). “In a capital sentencing
proceeding, assessments of character and remorse may
carry great weight and, perhaps, be determinative of
whether the offender lives or dies.” Riggins v. Nevada,
504 U.S. 127, 144 (1992) (concurring opinion).




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