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United States v. Kilmartin

United States District Court, D. Maine

October 24, 2016

UNITED STATES OF AMERICA
v.
SIDNEY P. KILMARTIN

          SECOND [1] AMENDED [2] ORDER DENYING MOTION TO COMPEL AND FOR A MISSING EVIDENCE INSTRUCTION

          JOHN A. WOODCOCK, JR UNITED STATES DISTRICT JUDGE

         Sidney Kilmartin is about to go to trial on a fifteen count indictment that alleges in part that he engaged in a scheme in which he pretended to sell depressed and suicidal persons cyanide but instead sent them Epsom Salts.[3] The Government moved to compel the defense to produce the salts, a laptop, and a cellphone that it claims were obtained by defense counsel, as well as any data retrieved from the laptop and cellphone. The Court declines to compel disclosure of these items based on defense counsel's representations that he does not have the items and does not intend to use them in Mr. Kilmartin's case-in-chief. The Court also denies the Government's request for a missing evidence instruction pertaining to these items.

         I. BACKGROUND

         A. Procedural Background

         On September 7, 2016, the Government moved to compel Mr. Kilmartin to produce the salts, laptop, and cellphone obtained by counsel, as well as any data retrieved from the laptop and cellphone, or, in the alternative, requested that the Court give a missing evidence instruction and allow the Government to draw an adverse inference from Mr. Kilmartin's failure to produce such items. Mot. Under Seal to Compel or For a Missing Evid. Instr. (ECF No. 110) (Mot. to Compel).[4] Mr. Kilmartin objected on September 23, 2016. Def.'s Obj. to Mot. to Compel (ECF No. 125) (Def.'s Obj.). The Government filed a reply on September 27, 2016. Gov't's Reply Under Seal (ECF No. 130).

         B. Factual Background

         The Government recounts the following facts concerning the discovery process in this case: The defense made its initial request for Rule 16 discovery by letter dated November 14, 2014. Mot. to Compel at 1. Government counsel began providing discovery by letter dated November 21, 2014 and has continued to supplement discovery ever since. Id. In a discovery letter dated November 28, 2014, government counsel requested all reciprocal discovery to which it was entitled. Id.

         By email on May 1, 2015 and letter dated May 7, 2015, government counsel alerted Mr. Kilmartin's then defense counsel that tests indicated that substances recovered from three of Mr. Kilmartin's victims were Epsom Salts. Id. at 1-2. In a May 28, 2015 meeting with government counsel and Postal Inspector Michael Desrosiers, Mr. Kilmartin's then defense counsel said that Mr. Kilmartin obtained cyanide and advertised it on the internet but that he only sent people Epsom Salts. Id. at 2. On September 11, 2015, Mr. Kilmartin's estranged wife revealed that after Mr. Kilmartin was arrested, his defense attorney collected salts from her house. Id. On October 8 and 9, 2015, government counsel requested any salts obtained from Mr. Kilmartin's estranged wife. Id.

         In July of 2015, Mr. Kilmartin's brother-in-law revealed to Postal Inspector Jeffrey Taylor that he had a laptop that had belonged to Mr. Kilmartin. Id. The Government obtained a search warrant for the laptop and conducted forensic analysis on October 28, 2015, which revealed that the laptop was activated after the events charged in the superseding indictment. Id. A keyword search revealed a chat about cyanide between Mr. Kilmartin and his estranged wife. Id. The results of this examination were disclosed to defense counsel by supplemental discovery letter dated January 5, 2016. Id. at 2-3.

         In a meeting on October 16, 2015, Mr. Kilmartin's then defense counsel identified several discs of material representing the contents of Mr. Kilmartin's cellphone and laptop that had not come from the Government. Id. at 3. Government counsel requested these discs in a supplemental discovery letter dated October 27, 2015 and reiterated the request in a letter dated January 5, 2016. Id.

         On February 1, 2016, government counsel and Inspectors Taylor and Desrosiers met with Mr. Kilmartin's new counsel, Martin Ridge, to review discovery, and government counsel repeated its discovery requests to him. Id. The Government memorialized these requests in supplemental discovery letters dated February 2, 2016, May 13, 2016, July 1, 2016, and August 9, 2016. The Government states that in a phone conversation on September 1, 2016, Mr. Ridge informed the Government that he had no salts, computer, cellphone, or discs of material representing contents of any computer or cellphone, other than those that the Government produced as discovery. Id.

         In his objection, defense counsel states that he “has responded to the Government's request for discovery by indicating it is not in possession of the phone, laptop or salts sought by the Government” and that he “does not intend to use any other requested item in [his] case in chief.” Def.'s Obj. at 2.

         II. DISCUSSION

         A. ...


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