United States District Court, D. Maine
ORDER DENYING DEFENDANT'S MOTION IN
A. WOODCOCK, JR DISTRICT JUDGE
trial looming, Sidney Kilmartin moves to preclude the
Government from introducing email statements made by Andrew
Denton, as well as expert testimony of toxicologist Dr.
Cynthia Morris-Kukoski. The Court rules that the email
statements by the late Andrew Denton are not hearsay and are
admissible and that the testimony of Dr. Morris-Kukoski is
admissible subject to the Defendant's specific objections
Kilmartin is charged in a fifteen count indictment with mail
fraud, wire fraud, retaliation against a witness, witness
tampering, and mailing injurious items resulting in death.
Indictment (ECF No. 3). The Government has alleged
that Mr. Kilmartin engaged in a scheme of defrauding
individuals he had encountered on the internet by promising
to mail potassium cyanide to these people, accepting their
money, and then mailing Epsom salts instead of potassium
cyanide. Gov't's Trial Brief at 3-4
(ECF No. 103). With respect to Mr. Denton, the Government has
further alleged that after Mr. Denton filed a complaint
against Mr. Kilmartin for mailing him Epsom salts, Mr.
Kilmartin sent him actual potassium cyanide, which Mr. Denton
used to kill himself. Id.
September 12, 2016, Mr. Kilmartin filed a motion in limine to
preclude the Government from introducing at trial emails
written by Mr. Denton and expert testimony of Dr.
Morris-Kukoski. Def.'s Mot. in Limine (ECF No.
112) (Def.'s Mot.). As to the emails written by
Mr. Denton, Mr. Kilmartin argues that these statements
represent inadmissible hearsay and that they do not fit
within any exception. Id. at 2-5. Specifically, he
argues that the statements do not fall within Rule
804(b)(2)'s exception for statements made under belief of
imminent death because the email correspondence occurred many
days before Mr. Denton's suicide and because it is
undisputed that Mr. Denton killed himself. Id. at 3.
Additionally, he argues that the statements do not fit Rule
804(b)(6)'s exception for statements offered against a
party that wrongfully caused the declarant's
unavailability because Mr. Denton caused his own death by
suicide and there were no pending charges against Mr.
Kilmartin at the time of Mr. Denton's death. Id.
at 3-4. Mr. Kilmartin also claims that the correspondence
would cause a Confrontation Clause issue. Id. at 4.
Dr. Morris-Kukoski's testimony, Mr. Kilmartin argues that
the testimony is not relevant to any element of any offense
with which Mr. Kilmartin is charged and that the Government
already has several witnesses prepared to testify that Mr.
Denton died from his own ingestion of a lethal amount of
potassium cyanide. Id. at 5. Mr. Kilmartin further
argues that even if the testimony has some probative value,
that value is outweighed by the prejudice that would be
created if Dr. Morris-Kukoski is allowed to testify about
what potassium cyanide does to the body. Id. at 6.
Government filed its opposition to Mr. Kilmartin's motion
on September 19, 2016. Gov't's Opp'n to
Def.'s Mot. in Limine (ECF No. 122)
(Gov't's Opp'n). The Government first
argues that Mr. Denton's statements should be admitted.
Id. at 2. Citing caselaw, the Government maintains
that the statements are not hearsay because they provide
context in which to understand Mr. Kilmartin's own
statements and because they are probative as res gestae of
Mr. Kilmartin's fraud. Id. at 2-3. The
Government states that even if the statements constitute
hearsay, they are admissible pursuant to the exceptions for
dying declarations and forfeiture by wrongdoing. Id.
Government also argues that Dr. Morris-Kukoski should be
allowed to testify because the testimony is relevant and not
unduly prejudicial or cumulative. Id. at 5-8. The
Government outlines the elements of the offenses charged,
presents its theory of the case, and explains how Dr.
Morris-Kukoski's testimony will assist the jury in
determining the relevant facts and issues. Id.
Email Statements by Andrew Denton
Kilmartin seeks to exclude the email correspondence from Mr.
Denton on the grounds that it is hearsay that does not fall
within any exception. The Court disagrees. Hearsay is a
statement that “(1) the declarant does not make while
testifying at the current trial or hearing; and (2) a party
offers in evidence to prove the truth of the matter asserted
in the statement.” Fed.R.Evid. 801(c). The First
Circuit has found that out-of-court statements offered not to
prove the truth of the matter asserted, but merely to show
context, are not hearsay. United States v.
Cruz-Díaz, 550 F.3d 169, 176 (1st Cir. 2008)
(statement offered for the limited purpose of showing what
effect the statement had on the listener is not hearsay);
United States v. Bailey, 270 F.3d 83, 87 (1st Cir.
2001) (statement “offered to show the effect of the
words spoken on the listener (e.g., to supply a motive for
the listener's action) is not hearsay”); United
States v. Catano, 65 F.3d 219, 225 (1st Cir. 1995)
(other parts of a conversation that are “reciprocal and
integrated utterance(s) . . . reasonably required to place
[the defendant's] admissions into context” are not
the emails from Mr. Denton contain complaints to Mr.
Kilmartin, which the Government seeks to introduce in order
to provide context for Mr. Kilmartin's own
correspondence and to show the effect on Mr. Kilmartin,
namely his decision to reveal his source and to send Mr.
Denton real cyanide. To the extent that the Government seeks
to introduce the emails for this purpose, they are not
even if the Government does introduce Mr. Denton's emails
for the truth of the matters asserted in them, they would be
admissible as a hearsay exception. Rule 804 provides an
exception to the hearsay rule when a declarant is unavailable
as a witness and the statement is being “offered
against a party that wrongfully caused - or acquiesced in
wrongfully causing - the declarant's unavailability as a
witness, and did so intending that result.” Fed.R.Evid.
804(b)(6). Mr. Denton is unavailable within the meaning of
this Rule as he is dead. See Fed. R. Evid.
804(a)(4). Even though Mr. Denton died of his own hand, the
Government has alleged that Mr. Kilmartin sold the poison
that Mr. Denton used to kill himself. The rationale
underlying this rule is that “courts will not suffer a
party to profit by his own wrongdoing.” United
States v. Houlihan, 92 F.3d 1271, 1279 (1st Cir. 1996).
true that the Confrontation Clause provides that “[i]n
all criminal prosecutions, the accused shall enjoy the right
. . . to be confronted with the witnesses against him.”