Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

United States v. Kilmartin

United States District Court, D. Maine

August 24, 2017

UNITED STATES OF AMERICA
v.
SIDNEY P. KILMARTIN

          ORDER ON MOTIONS FOR JUDGMENT OF ACQUITTAL AND NEW TRIAL

          JOHN A. WOODCOCK, JR UNITED STATES DISTRICT JUDGE

         In December 2012, Sidney Kilmartin of Manchester, Maine mailed Andrew Denton of Hull, England, who was profoundly depressed and suicidal, enough potassium cyanide to kill him, and Mr. Denton took the cyanide and committed suicide. On December 9, 2015, a federal grand jury issued a fifteen-count superseding indictment, charging Mr. Kilmartin with two counts of wire fraud and one count each of mail fraud, mailing injurious articles resulting in death, witness tampering, and witness retaliation for his alleged conduct with respect to Mr. Denton.

         Mr. Denton was not Mr. Kilmartin's first victim. The remaining nine charges in the superseding indictment alleged that Mr. Kilmartin perpetrated mail and wire fraud against four additional depressed individuals, who ordered and paid for cyanide from Mr. Kilmartin but instead, he sent them harmless Epsom salts.

         After a six-day trial on the charges involving Mr. Denton, on October 11, 2016, a jury convicted Mr. Kilmartin of two counts of wire fraud and one count each of mail fraud, mailing injurious articles resulting in death, and witness tampering; it acquitted him of one count of witness retaliation. Just before trial began, Mr. Kilmartin pleaded guilty to nine counts of mail and wire fraud against the four other individuals named in the superseding indictment.

         Mr. Kilmartin now moves for judgment of acquittal on the mailing injurious articles resulting in death and witness tampering counts. He also moves for a new trial based on the admission of evidence of his scheme to defraud individuals other than Mr. Denton. Mr. Kilmartin accepted the guilty verdicts on the wire and mail fraud counts and his motions for acquittal and new trial do not include his convictions for those crimes.

         The Court denies the Defendant's motions because it concludes that the evidence is sufficient to sustain the convictions on the witness tampering and mailing injurious articles resulting in death counts, and because it concludes that it properly admitted the evidence of his scheme to defraud others under Federal Rules of Evidence 404(b) and 403.

         I. BACKGROUND[1]

         A. The Scheme

         Sidney Kilmartin may have thought he had devised and was perpetrating the perfect crime. Between April 2012 and May 2013, Mr. Kilmartin designed a scheme to defraud suicidal persons by pretending to sell them cyanide when in fact he sent them Epsom salts. Revised Prosecution Version at 1 (ECF No. 140). In September 2012, posing as a goldsmith, Mr. Kilmartin ordered and obtained 100 grams of potassium cyanide for $127.56 from Fisher Scientific, a large supplier of chemicals for industrial and scientific purposes. Id. at 2. Mr. Kilmartin then posted a notice on a website devoted to suicidal persons called “wantdeathblogspot” that he had industrial grade potassium cyanide for sale. Id.; Gov't Ex. 8 web capture of wantdeathblogspot.co.uk. From September 2012 to May 2013, Mr. Kilmartin used an email address, skiptin@gmail.com, to communicate with numerous people around the United States and internationally, and he agreed to sell them potassium cyanide, accepting payment through PayPal and Western Union. Revised Prosecution Version at 3. The payments ranged from $125 to $250 for about 500 milligrams. Id. at 4; Gov't Ex. 19 (agreeing to sell Walter Cottle 500 milligrams for $125). However, instead of sending more expensive fatal cyanide to his customers, he mailed them inexpensive Epsom salts, and he pocketed the cost difference. Revised Prosecution Version at 4-5.

         The scheme must have seemed fool-proof. Having paid for and received supposed cyanide, the suicidal persons might well have second thoughts and decide not to take what they thought was a lethal dose of poison, keep the alleged cyanide for another dark day, or throw it out. Alternatively, if suicidal persons actually took the supposed poison, the surviving customers could hardly complain that it did not work. After all, they would still be alive. Moreover, upon reflection, many would be relieved that Mr. Kilmartin had not sent the real item, some would be too embarrassed to complain, and for the rare protester, he or she would not be in much a position to complain because the harm would be continued life. Furthermore, the chances of being found out as the actual perpetrator would be remote given the anonymity of the internet and the complexity of tracking internet sales.

         To perpetrate the mail and wire frauds, Mr. Kilmartin did not need to actually possess real cyanide. He only needed to make depressed customers think he had it. But at some point, Mr. Kilmartin actually went to the trouble and expense of obtaining cyanide from Fisher Scientific. In fairness to Mr. Kilmartin, there is no direct evidence as to whether he purchased actual cyanide as part of his mail fraud scheme; however, once Mr. Kilmartin had actual cyanide, if a customer persisted, demanded to be sent what he paid for, and threatened to report him to the authorities for fraud, Mr. Kilmartin could make good on his part of the bargain by sending the person real poison. Once the customer received exactly what he or she ordered, there could be no continuing claim of fraud, and if he or she took a lethal dose, the customer's complaints would be silenced by death.

         In mid-November 2012, Mr. Kilmartin filled an online order for cyanide from Andrew Denton of Hull, England and sent him Epsom salts. Mr. Denton received the packet from Mr. Kilmartin on November 30, 2012, and unsuccessfully tried to commit suicide with the Epsom salts. Gov't Ex. 55, Andrew Denton Online Report of Internet Crime Victim at 3 (Dec. 7, 2012) (Denton IC3 Compl.). When his suicide attempt failed, Mr. Denton became irate with Mr. Kilmartin, complained directly to him by email, and accused him of “ripping me off.” Gov't Ex. 103, Email from Andrew Denton to Skip Martin at 1 (Dec. 7, 2012). Significantly, Mr. Denton told Mr. Kilmartin that if he did not get a quick reply, he would “start firstly by filling in the FBI online form.” Id. On December 7, 2012, Mr. Denton went ahead and filed an online complaint with the Internet Crime Complaint Center (IC3), a multi-agency federal task force that receives complaints about cyber-crime. Denton IC3 Compl.

         At some point, Mr. Kilmartin became aware that Mr. Denton had gone ahead and filed a complaint with the IC3 and Mr. Kilmartin mailed Mr. Denton potassium cyanide, which Mr. Denton received on December 19, 2012. Gov't Ex. 102, Email Correspondence between Kilmartin and Denton. On December 20, 2012, Mr. Kilmartin emailed Mr. Denton, acknowledging that the “FBI” was “aware of his goings” and asking him to “do something with your hard drive before your event.” Id. On December 31, 2012, Mr. Denton used the cyanide Mr. Kilmartin supplied to kill himself.

         B. The Charges and the Guilty Pleas

         On December 9, 2015, a grand jury returned a fifteen-count superseding indictment charging Sidney P. Kilmartin with twelve counts of fraud for a scheme in which he defrauded suicidal persons by pretending to send them potassium cyanide and instead sending Epsom salts, and with one count each of mailing injurious articles resulting in death, witness tampering, and witness retaliation for killing one of the fraud victims, Andrew Denton, in an effort to prevent Mr. Denton from complaining to law enforcement or to retaliate against him for his having done so. Superseding Indictment (ECF No. 85). On the morning of October 3, 2016, right before jury selection, Mr. Kilmartin pleaded guilty to the nine counts of fraud in the superseding indictment that did not involve the decedent Andrew Denton, leaving only the Denton counts for trial. Min. Entry (ECF No. 142). The victims of the nine fraud counts to which Mr. Denton pleaded guilty were Walter Cottle of Georgia, Superseding Indictment at 2, Stacey Williams of Colorado, id. at 2, 3, Derek Jorgensen of Hull, England, id. at 3, 4, and Cynthia Kirschling of California. Id.

         This left the following charges for trial all involving Andrew Denton: (1) Count One, mailing injurious articles resulting in death, an alleged violation of 18 U.S.C. § 1716(j)(3); (2) Count Five, wire fraud occurring in November and December 2012, an alleged violation of 18 U.S.C. § 1343; (3) Count Seven, wire fraud, occurring on November 11, 2012, another alleged violation of 18 U.S.C. § 1343; (4) Count Twelve, mail fraud occurring on November 16, 2012, an alleged violation of 18 U.S.C. § 1341; (5) Count Fourteen, witness tampering, an alleged violation of 18 U.S.C. § 1512(a)(1)(A), (C); and (6) Count Fifteen, witness retaliation resulting in death, an alleged violation of 18 U.S.C. §§ 1513(a)(1)(B), (a)(2)(A), and 1111.

         C. The Trial

         Trial began on October 3, 2016, directly following Mr. Kilmartin's guilty pleas and jury selection. Min. Entry (ECF No. 142). Twenty-eight witnesses testified, Witness List (ECF No. 150), and over 100 exhibits were received into evidence. Ex. List (ECF No. 151). On October 11, 2016, a jury convicted Mr. Kilmartin of one count of mailing injurious articles resulting in death, two counts of wire fraud, one count of mail fraud, and one count of witness tampering. Jury Verdict Form at 1-2 (ECF No. 153) (Verdict Form). The jury acquitted Mr. Kilmartin of one count of witness retaliation. Id. at 2.

         On October 25, 2016, Mr. Kilmartin moved for judgment of acquittal under Federal Rule of Criminal Procedure 29 and for a new trial under Federal Rule of Criminal Procedure 33. Def.'s Mot. for J. of Acquittal and New Trial (ECF No. 162) (Def.'s Mot.). The Government opposed Mr. Kilmartin's motions on November 1, 2016. Opp'n to Mot. for Acquittal and New Trial (ECF No. 167) (Gov't's Opp'n). The Court held oral argument on the motion on December 15, 2016. Min. Entry (ECF No. 176).

         On March 20, 2017, before the Court issued a ruling on the motions, the Court granted a motion to withdraw by Mr. Kilmartin's then-counsel, Attorney Martin Ridge, and appointed Attorney Bruce Merrill to represent Mr. Kilmartin. Mot. to Withdraw (ECF No. 190); Order (ECF No. 191). The Court allowed Attorney Merrill time to familiarize himself with the case and on July 10, 2017, Mr. Kilmartin filed a supplemental memorandum in support of his motion for acquittal and new trial. Def.'s Suppl. Mem. of Law in Supp. of Mot. for J. of Acquittal and New Trial (ECF No. 204) (Def.'s Suppl. Mem.). The Government filed its supplemental memorandum on July 31, 2017. Gov't's Suppl. Mem. Regarding Def.'s Mots. for Acquittal and New Trial (ECF No. 205) (Gov't's Suppl. Mem.). Mr. Kilmartin replied on August 12, 2017. Def.'s Reply to Gov't's Suppl. Mem. of Law Regarding Def.'s Mot. for Acquittal and New Trial (ECF No. 209) (Def.'s Suppl. Reply). The Court held a second oral argument on August 16, 2017. Min. Entry (ECF No. 211).

         II. RULES 404(b) & 403: AN EVIDENTIARY ISSUE

         Throughout trial, the defense pressed a significant evidentiary issue: whether other victims of Mr. Kilmartin's fraudulent scheme would be allowed to testify about their dealings with him. To place this issue in context, just before Mr. Kilmartin pleaded guilty to the nine counts of fraud, the Court raised with counsel whether it should advise Mr. Kilmartin that the fact of the fraud convictions and the facts underlying those convictions might be admissible as evidence in the trial on the remaining Denton counts. Chambers Conf., Tr. of Proceedings 2:11-17 (Oct. 3, 2016) (ECF No. 163). Both counsel agreed that the fact of the convictions would be admissible, but defense counsel had qualms about the exact facts alleged in the written prosecution version that the Government had submitted in anticipation of the guilty pleas. Id. 2:18-3:19. At the Court's suggestion, counsel met and resolved the facts to which Mr. Kilmartin was prepared to admit at the Rule 11. Id. 3:20-4:17. During Mr. Kilmartin's Rule 11 just before jury selection, the Court warned Mr. Kilmartin not only that the guilty pleas, but also that the facts underlying the guilty pleas might be admissible as evidence during the trial on the Denton counts.[2] At the Rule 11, Mr. Kilmartin expressly agreed that the contents of the Revised Prosecution Version were true. The Court accepted Mr. Kilmartin's guilty pleas to the nine fraud counts.

         At a second chambers conference just before opening statements, defense counsel indicated to the Court that he intended to refer in his opening statement to Mr. Kilmartin's guilty pleas to the nine fraud counts, and he asked whether either the Court or the Government objected to his doing so. Chambers Conf., Tr. of Proceedings 11:13-23 (Oct. 3, 2016) (ECF No. 164). The Government did not object and the Court allowed defense counsel to discuss Mr. Kilmartin's guilty pleas in his opening statement. Id. 11:24-13:5.

         Throughout the trial, the Government introduced evidence of Mr. Kilmartin's fraud against victims other than Mr. Denton (the non-Denton fraud evidence). For example, by stipulation, the Government read into record the Revised Prosecution Version of events underlying Mr. Kilmartin's pleas of guilty. In addition, the Government presented the testimony of Walter Cottle, Stacey Williamson, and Cynthia Kirschling, three of the four victims of the nine counts of fraud to which Mr. Kilmartin pleaded guilty. These victims described how they became suicidal to the point of seeking cyanide, how they met Mr. Kilmartin online, how they corresponded with him about cyanide, how they paid for the cyanide, and how the defendant packaged, addressed and mailed them a white substance they believed was cyanide but that later tested as Epsom salts. It also presented the testimony of Stuart Quinn, a UK law enforcement officer, about the fourth named victim, Derek Jorgensen. Mr. Quinn described Mr. Jorgenson's prior attempts at suicide and dealings with Mr. Kilmartin.

         In addition, the Government introduced evidence concerning victims other than those charged in the superseding indictment. For example, it presented evidence of email correspondence with 247 different email addresses in which Mr. Kilmartin described the quality of his cyanide and explained how much it took to kill, how its effectiveness could be increased, how much it cost, how to pay for it, how to ship it, and where he lived. The Government also presented testimony from Autumn Roland, who was similarly defrauded but never received any package from Mr. Kilmartin. It presented evidence that the grandmother of a victim, Edith Collins, filed an IC3 complaint against Mr. Kilmartin without his knowledge.

         Mr. Kilmartin had a continuing objection to the admission of this non-Denton fraud evidence based on Rule 404(b), arguing that it was improper evidence of other crimes or wrongs. The Court overruled the objections, finding that the evidence had special relevance to motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of accident, but instructed the jury regarding the limited use to which it could put the evidence.

         III. UNITED STATES v. FORD

         Three days after the jury verdict in Mr. Kilmartin's case, the First Circuit decided United States v. Ford, 839 F.3d 94 (1st Cir. 2016). In Ford, the defendant appealed from a conviction in this Court of conspiracy, manufacturing over 100 marijuana plants, maintaining a residence for marijuana manufacturing, and possessing a firearm as a felon, all of which related to a marijuana grow operation run by Mr. Ford, his wife, and his two sons in Maine. 839 F.3d at 98.

         Mr. Ford had previously been convicted in 2002 in the commonwealth of Massachusetts of possession of marijuana with intent to manufacture, distribute, or dispense, a felony under Massachusetts law. Id. at 102. The evening of the execution of the search warrant in Maine, Mr. Ford had told law enforcement that he got “popped in Mass” as a result of his previous grow operation in Massachusetts and that he had ended up with “a frigging . . . felony conviction because they forced me to plea bargain.” Id. at 98. Significantly, in his opening statement, defense counsel conceded that Mr. Ford had been growing marijuana in his Maine barn, but he denied that Mr. Ford had grown as much marijuana as the Government alleged or that he had been engaged in a conspiracy with other family members to grow the marijuana. Id. at 99.

         At trial, the Government proposed to call James Bruce, a Massachusetts State Trooper, to testify about the facts underlying Mr. Ford's 2002 conviction. The First Circuit summarized Mr. Bruce's testimony at trial:

Bruce testified that he executed a search warrant at 2 Fellsmere Avenue in Wakefield, Massachusetts on October 11, 2002. He discovered three rooms “devoted entirely to marijuana.” The operation was “pretty impressive, ” with plants in different stages of maturity and a variety of equipment. During the search, [Mr. Ford] informed Bruce that he did not reside at the house but actually lived across the street at 5 Fellsmere Avenue. [Mr. Ford] consented to a search of that home, where Bruce discovered another grow operation. Bruce testified the operations were consistent with distribution, rather than personal use.

Id. at 102. Mr. Ford objected to the admission of this testimony at trial under Federal Rules of Evidence 404(b) and 403, arguing that the evidence was not relevant for any special purpose because Mr. Ford did not contest that he intentionally grew marijuana in Maine. Id. at 101. However, this Court overruled the objection, finding it had a special relevance to Mr. Ford's motive, opportunity, intent, preparation, plan, and knowledge, and the Court provided the jury with a limiting instruction in an attempt to curb any prejudicial effect. Id. at 101-02.

         In evaluating Mr. Ford's challenge on appeal, the First Circuit did not discuss this Court's determination that the facts underlying the 2002 marijuana conviction had the “special relevance” required by Rule 404(b)(2). Id. at 109 (“Even assuming Bruce's testimony was specially relevant for one or more non-propensity purposes”). Instead, the First Circuit focused on whether Trooper Bruce's testimony was properly admitted under Rule 403 and concluded that its admission was “questionable.” Id. The First Circuit recited the familiar Rule 403 standard, namely whether the probative value of the evidence was substantially outweighed by the danger of unfair prejudice. Id. (citing Fed.R.Evid. 403).

         The First Circuit acknowledged that even though Mr. Ford had not contested the Government's allegation that he had intentionally grown marijuana in Maine, the Government “still retained the burden to prove each element of the charges beyond a reasonable doubt and, as a general matter, was entitled to prove its case by evidence of its own choice.” Id. (citation omitted). Nevertheless, the fact that Mr. Ford conceded this “central allegation” rendered “the probative value of Bruce's testimony significantly reduced.” Id. The First Circuit observed that given Mr. Ford's concession and the “other evidence presented, ” the Government “arguably did not need the testimony regarding the Massachusetts growing operation.” Id. The Ford Court recited the rule that a trial court should “weigh the risk of unfair prejudice against ‘the government's need for the evidence, ' among other factors.” Id. at 109-10 (citation omitted).

         Another factor weighing against the probative value of the facts underlying the Massachusetts conviction was the “remoteness in time” of the prior conviction. Id. at 110. The First Circuit noted that the “Massachusetts bust occurred nine years before the search in Maine.” Id.

         Having concluded that the probative value of Trooper Bruce's testimony was minimal, the First Circuit turned to the risk of unfair prejudice and concluded it was “high.” Id. The First Circuit conceded that Trooper Bruce's testimony was “not particularly shocking” and that there was “little danger that it swayed the jury toward a conviction on an emotional basis.” Id. (citation omitted). Yet, the First Circuit opined that “the risk is that the jury used it to infer criminal propensity.” Id. The First Circuit considered the risk “especially pronounced” because “the prior conduct is identical to the charged crime.” Id. The Ford Court noted that the “grow operations were extremely similar; they were both large and highly sophisticated, with plants in different stages of growth and a variety of equipment.” Id.

         Finally, the First Circuit discounted the impact of the trial court's limiting instruction. Id. It wrote that “in view of the negligible probative value of the evidence, it is not clear the district court's limiting instructions were sufficient to curb its prejudicial effect.” Id. Despite the First Circuit's expressed reservations about the admissibility of Trooper Bruce's testimony under Rule 403, the First Circuit concluded that any error by the trial court was harmless. Id.

         In light of the Ford decision, the Court ordered the parties to brief whether it erred in admitting the non-Denton fraud evidence and, if so, whether the error was harmless. Order (ECF No. 158) (Ford Order). The Government filed its memorandum in response to the Court's Order on November 1, 2016. Gov't's Mem. Regarding the Effect of United States v. Ford (ECF No. 166) (Gov't's Ford Mem.). Mr. Kilmartin filed his memorandum on November 15, 2016. Def.'s Mem. (ECF No. 169) (Def.'s Ford Mem.). The Government replied on November 23, 2016. Gov't's Reply Mem. Regarding the Effect of United States v. Ford (ECF No. 171) (Gov't's Ford Reply).

         IV. THE PARTIES' POSITIONS

         A. The Motions for Acquittal and New Trial

         1. Sidney Kilmartin's Motion [3]

         Mr. Kilmartin states that under Rule 29 of the Federal Rules of Criminal Procedure, “the court on the defendant's motion must enter a judgment of acquittal of any offense for which the evidence is insufficient to sustain a conviction.” Id. at 2. Citing caselaw, Mr. Kilmartin explains that when a court evaluates whether the evidence is sufficient, it must “determine whether viewing the evidence in the light most favorable to the Government, any rational trier of fact could have found the defendant guilty of the crime beyond a reasonable doubt . . . whether the evidence, if believed, would establish each element of the crime.” Id. (citations omitted). Mr. Kilmartin then sets out the elements the Government needed to prove beyond a reasonable doubt to convict him of Counts One and Fourteen. Id. at 3. He contends that “there was insufficient evidence presented to the jury to sustain the convictions on these two counts.” Id.

         With regard to Count One, Mr. Kilmartin says that the Government introduced evidence of two mailings from Mr. Kilmartin to Mr. Denton, alleging that in the first Mr. Kilmartin sent Epsom salts, but that after Mr. Denton filed an IC3 complaint, Mr. Kilmartin sent a second package that contained potassium cyanide. Id. at 3-4. Mr. Kilmartin argues, as he did at trial, that “the evidence did not support the conclusion that the contents of the package was potassium cyanide because there was no scientific proof that the substance found at Mr. Denton's home was, in fact, potassium cyanide.” Id. at 4. In addition, Mr. Kilmartin argues that “[t]he evidence was overwhelming that even if the item mailed was potassium cyanide, the article mailed did not itself kill Mr. Denton.” Id. He points out that the item was delivered on or about December 20, 2012, but Mr. Denton died on December 31, 2012, as a result of his own actions. Id. He also states that the evidence showed that Mr. Denton had been suicidal for years leading up to 2012 and that he had made many attempts to take his own life. Id. Mr. Kilmartin argues that “[t]he act of mailing the item was so far removed from Mr. Denton's death as to make it not reasonable to conclude that the item resulted in Mr. Denton's death.” Id.

         Mr. Kilmartin also argues that the evidence does not support a conviction on Count Fourteen. Id. at 5-6. He acknowledges that the evidence established that Mr. Denton complained to IC3, but states that the evidence also establishes that Mr. Denton wrote back to IC3 recanting his complaint and stating that he had worked out the problem. Id. at 5. He argues that there was no evidence that the complaint was forwarded to law enforcement or anything was done with the complaint and therefore “[f]or the jury to conclude that there was a reasonable likelihood that such a communication would have been made to a federal law enforcement officer had to have been based upon speculation by the jury.” Id. Mr. Kilmartin then states that his argument in Count One regarding the killing of Mr. Denton applies equally to Count Fourteen. Id. at 5-6. Finally, he contends that “[t]he inappropriateness of the jury's verdict in Count Fourteen is underscored by the fact that the same jury acquitted Mr. Kilmartin of Count Fifteen, which alleged that he killed Mr. Denton in retaliation for Mr. Denton having made the IC3 complaint.” Id. at 6.

         In addition to the motion for judgment of acquittal, Mr. Kilmartin moves for a new trial based on the admission of evidence of Mr. Kilmartin's scheme to defraud people other than Mr. Denton. Id. at 6-7. In his view, “[t]he evidence over and over again highlighted that Mr. Kilmartin had done many bad things to many victims in order to make money” and that the “jury was overwhelmed by the sheer volume of information and determined, as a result, to convict Mr. Kilmartin of a count that alleged he killed Mr. Denton.” Id. He explains that the Court ordered the parties to brief this issue separately in light of the Ford decision and says that if the Court concludes that the admission of the non-Denton fraud evidence was inappropriate, he should be granted a new trial under Federal Rule of Criminal Procedure 33, which provides that “the court may vacate any judgment and grant a new trial if the interest of justice so requires.” Id. at 7.

         2. The Government's Opposition

         The Government agrees that the standard for a judgment of acquittal is “whether viewing the evidence in the light most favorable to the government, a reasonable jury could have found the defendant guilty beyond a reasonable doubt” but contends that in Mr. Kilmartin's case “there was ample evidence from which a reasonable jury could have done so.” Gov't's Opp'n at 2.

         In the Government's view, there was sufficient evidence to prove that the substance mailed by Mr. Kilmartin was cyanide. Id. It states that the evidence showed that Mr. Kilmartin ordered, paid for, and received 99.6% pure potassium cyanide from Fisher Scientific; that he advertised it for sale on the internet; that he corresponded about it via email; and that he mailed it to Mr. Denton after Mr. Denton complained about the first package. Id. Additionally, the Government says that there was evidence that the content of the second mailer was potassium cyanide, including a test of the residue from the mailer on the scene and testimony of the toxicologist who sampled Mr. Denton's blood. Id.

         The Government also argues that there was evidence from which a rational jury could have concluded that Mr. Kilmartin killed Mr. Denton. Id. It claims that the evidence showed that Mr. Kilmartin intended and desired Mr. Denton's death in order to protect himself. Id. at 2-3. It also points to the testimony of the UK law enforcement officers who responded to the scene of death and ruled out other possible causes and of the toxicologist who opined that Mr. Denton was killed by cyanide. Id. at 3.

         As for the witness tampering charge, the Government argues that there was ample evidence to conclude that Mr. Kilmartin killed Mr. Denton with the intent to prevent a communication to a law enforcement officer. Id. It lists the evidence that it believes supported the conviction, including evidence that Mr. Denton complained to IC3 about the phony cyanide and told Mr. Kilmartin he had done so, that the IC3 is an online complaint referral service of the FBI, that Mr. Kilmartin had committed a federal offense in the form of an extensive scheme to defraud persons by pretending to send them cyanide, and that Mr. Kilmartin explicitly asked Mr. Denton to destroy evidence of their interaction because Mr. Kilmartin was concerned that “with the FBI aware of [his] goings on the last thing [he needed was] to give them more fodder.” Id. Additionally, the Government argues that the acquittal on the witness retaliation charge can be explained by the fact that the jury had only circumstantial evidence of retaliation, but direct evidence of witness tampering, and therefore the acquittal for retaliation “does not compel the conclusion that the jury speculated about, or was confused with regard to, the tampering count.” Id. at 3-4.

         The Government also maintains that Mr. Kilmartin should not be granted a new trial based on the admission of the non-Denton fraud evidence. Id. at 4. The Government briefly argues that the evidence was admissible on several grounds and that its probative value was not substantially outweighed by the risk of any prejudicial effect. Id. at 4-5. It incorporates its ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.