United States District Court, D. Maine
SECOND  AMENDED  ORDER
DENYING MOTION TO COMPEL AND FOR A MISSING EVIDENCE
A. WOODCOCK, JR UNITED STATES DISTRICT JUDGE
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. 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.
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). 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).
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
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.
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.
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.
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
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.