FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF
MAINE [Hon. John A. Woodcock, Jr., U.S. District Judge]
J. Drake, with whom Drake Law LLC was on brief, for
Benjamin M. Block, Assistant United States Attorney, with
whom Halsey B. Frank, United States Attorney, was on brief,
Barron, Selya, and Boudin, Circuit Judges.
appeal arises against the backdrop of a criminal scheme that
was as cruel as it was cynical. When the scheme came to
light, a federal grand jury sitting in the District of Maine
charged defendant-appellant Sidney P. Kilmartin with an array
of offenses. The defendant pleaded guilty to nine
fraud-related counts and went to trial on the remaining six
counts of the superseding indictment (one charging mailing
injurious articles resulting in death, see 18 U.S.C.
§ 1716; two charging wire fraud, see id. §
1343; one charging mail fraud, see id. § 1341;
one charging witness tampering, see id. § 1512;
and one charging witness retaliation, see id. §
1513). The jury found the defendant guilty on five of the six
tried counts, acquitting him of witness retaliation. The
district court denied the defendant's post-trial motion
for judgment of acquittal and/or a new trial. It then
sentenced him to concurrent terms of immurement on the
fourteen counts of conviction.
venue, the defendant raises a golconda of issues. We hold
that the evidence was sufficient to convict on the tried
"mailing injurious articles" and witness tampering
counts (counts 1 and 14). With respect to those counts and
the fraud-related counts involving Denton (counts 5, 7, and
12), all of which were tried, we hold that the district court
abused its discretion in admitting highly charged evidence
having powerfully prejudicial effect but scant probative
value. Given the strength of the government's evidence of
guilt, this error, though egregious, was harmless as to most
of the tried counts. However, as to count 14 (the witness
tampering count) the error was not harmless, and we order a
new trial on that count. Finally, we reject the
defendant's claim of sentencing error. The tale follows.
briefly rehearse the background and travel of the case,
taking the facts in the light most congenial to the
government, consistent with record support. See,
e.g., United States v. Singh, 222 F.3d 6, 8
(1st Cir. 2000).
September of 2012, the defendant falsely posed as a
commercial goldsmith to order one hundred grams (at least
five hundred lethal doses) of ninety-eight percent pure
potassium cyanide (cyanide) from a California vendor. The
cyanide cost him about $127. Because the vendor would not
ship the cyanide to a residential address, the defendant had
it sent to a UPS store in Augusta, Maine. He retrieved the
merchandise on the day that it arrived.
defendant's next step was to create a Gmail account,
which allowed him to blog. He proceeded to post, on a website
for suicidal people called "wantdeathblogspot,"
that he had industrial-grade cyanide for sale. From around
September of 2012 until approximately May of the following
year, the defendant exchanged cyanide-related emails with
people all over the world, including Australia, Canada,
India, Nigeria, South Africa, the United Kingdom, and the
United States. A subsequent search of the defendant's
Gmail account revealed 484 email strings from about 274
unique email addresses. In these emails, the defendant agreed
to sell cyanide to several persons from whom he received
payments ranging from $150 to $250. But there was a rub:
instead of mailing cyanide to these purchasers, the defendant
sent them Epsom salts (which he represented to be cyanide).
the defendant's duped customers was Andrew Denton of
Hull, England. According to his niece, Denton "was just
adamant that he wanted to commit suicide." Denton
ordered cyanide from the defendant, who mailed Epsom salts to
him on November 16, 2012. The parcel arrived at the end of
November, and Denton ingested the substance in an effort to
kill himself. The attempt failed, and an irate Denton
complained to the FBI Internet Crime Complaint Center (IC3).
complaint, Denton described his dealings with the defendant,
noting that what he received could not have been cyanide
since "[i]t did not work." Denton also advised the
defendant about the IC3 complaint. On December 8, 2012, the
defendant emailed Denton, mentioned the possibility of a
second shipment, and described how Denton could order cyanide
directly from the California vendor "if all else
fails." The following day, Denton updated his IC3
complaint, stating that his issue had been resolved and he
did not wish to pursue his complaint. Two days later, the
defendant mailed a second parcel to Denton.
second parcel, which actually contained cyanide, arrived on
December 20. That same day, the defendant emailed Denton
asking if Denton could "do something" with his hard
drive "before [his] event." Expressing concern
about the FBI being "aware of [his] goings on," the
defendant stated that "the last thing" he needed
was "to give [the FBI] more fodder." Denton replied
that he would delete their emails, explained his
understanding that the IC3 complaint would remain open but
inactive for three months, and expressed his hope that the
cyanide would "work this time." Denton's
niece found him dead on December 31. Subsequent toxicological
examination disclosed lethal levels of cyanide in his blood.
Denton's effort to retract his complaint, the FBI
continued its investigation. This probe ripened into an
indictment and - in December of 2015 - the grand jury
returned a superseding indictment. Count 1 limned the
"mailing injurious articles" charge; counts 2
through 13 charged wire and mail fraud offenses (based on a
scheme to defraud suicidal people and to obtain money by
false pretenses, specifically, by pretending to sell cyanide
but sending Epsom salts instead); count 14 charged the
defendant with witness tampering, that is, with killing
Denton knowingly, intending to prevent his testimony in an
official proceeding and to prevent him from communicating
information related to the possible commission of a federal
offense to a law enforcement officer; and count 15 charged
the defendant with witness retaliation, that is, killing
Denton to retaliate for Denton's supplying of information
to IC3 regarding the commission of a federal offense.
defendant's trial was scheduled to start on October 3,
2016. That morning, the defendant entered guilty pleas to the
nine non-Denton counts. The trial went forward on the
remaining six counts. Four of the defendant's fraud
victims testified for the government (including one as to
whom the defendant's fraud had not been charged). A
victim's grandmother also testified at the
government's behest about the uncharged fraud perpetrated
against her minor granddaughter. In addition, the government
introduced testimony from a British detective about yet
the trial concluded, the jury convicted the defendant on all
the tried counts, save for count 15 (witness retaliation). In
post-trial proceedings, the defendant moved for judgments of
acquittal on counts 1 and 14 due to allegedly insufficient
evidence. See Fed. R. Crim. P. 29(c). In the same
motion, he sought a new trial on all of the tried counts of
conviction based on claimed evidentiary error. See
id. R. 33. The district court denied the motion in all
its aspects. It then sentenced the defendant to twenty years
of incarceration (the statutory maximum) on each
fraud-related count and twenty-five years of incarceration on
counts 1 and 14, stipulating that all of the sentences were
to run concurrently. This timely appeal followed.
defendant's asseverational array contains three main
parts. First, he argues that the district court erred in
refusing to order judgments of acquittal on counts 1 and 14.
Second, he argues that the district court should have
excluded certain evidence and that the failure to do so
unfairly prejudiced the jury against him, necessitating a new
trial on all the tried counts that resulted in convictions.
Third, he alleges sentencing error as to the sentences
imposed on the fraud-related counts. We address these
undertaking our analysis, we pause to confirm that we review
the district court's denial of a motion for judgment of
acquittal de novo. See United States v. Gomez, 255
F.3d 31, 35 (1st Cir. 2001). Where, as here, the defendant
challenges the sufficiency of the evidence, all of the proof
"must be perused from the government's
perspective." Id. A reviewing court must
determine whether that evidence, including the plausible
inferences therefrom, "enables a rational factfinder to
conclude beyond a reasonable doubt that the defendant
committed the charged crime." Id. (quoting
United States v. Noah, 130 F.3d 490, 494 (1st Cir.
1997)). The court need not be convinced that the verdict is
correct; it need only be satisfied that the verdict is
supported by the record. See id.
the defendant's motion for judgment of acquittal targets
both count 1 and count 14, the circumstances attendant to
this appeal counsel in favor of bifurcating our inquiry.
Thus, we treat separately each of the targeted counts.
Judgment of Acquittal: Count 1.
not possible to address the motion for judgment of acquittal
on count 1 in a vacuum. First, we must resolve a threshold
issue. Only then can we turn to the merits of the request for
an acquittal. Specifically, we must resolve an apparent
discrepancy between the indictment and the proof at trial.
stated in the superseding indictment, count 1 charged the
defendant with a misdemeanor (mailing nonmailable poison),
together with an enhancement for "death resulting."
The indictment itself did not allude to a mens rea
requirement. At trial, though, the parties and the district
court approached count 1 as if it charged a felony under a
different paragraph of the "mailing injurious
articles" statute. That paragraph requires the
government to show that the defendant had mailed an injurious
article with the intent to kill or injure another. The
government labored to prove this intent at trial, both
parties requested that the district court instruct the jury
on this intent element, and the district court obliged. As
explained below, this series of events added up to a
constructive amendment of count 1.
constructive amendment occurs when the charging terms of an
indictment are altered, either literally or in effect, by
prosecution or court after the grand jury has last passed
upon them." United States v. McIvery, 806 F.3d
645, 652 (1st Cir. 2015) (quoting United States v.
Brandao, 539 F.3d 44, 57 (1st Cir. 2008)). Constructive
amendments have Fifth and Sixth Amendment implications.
See id. These implications typically arise from
"a mismatch between the indictment's description of
the charged offense and some other variable," such as
the evidence offered, the jury instructions given, or the
sentence imposed. Id.
instance, the statute of conviction provides in relevant
(1) Whoever knowingly deposits for mailing or delivery . . .
anything declared nonmailable by this section, unless in
accordance with the rules and regulations authorized to be
prescribed by the Postal Service, shall be fined under this
title or imprisoned not more than one year, or both.
(2) Whoever knowingly deposits for mailing or delivery . . .
anything declared nonmailable by this section, whether or not
transmitted in accordance with the rules and regulations
authorized to be prescribed by the Postal Service, with
intent to kill or injure another . . . shall be fined under
this title or imprisoned not more than twenty years, or both.
(3) Whoever is convicted of any crime prohibited by this
section, which has resulted in the death of any person, shall
be subject also to the death penalty or to imprisonment for
18 U.S.C. § 1716(j). Count 1 of the superseding
indictment, by its terms, charged the defendant with the
misdemeanor offense described in (j)(1) along with the
sentencing enhancement described in (j)(3):
[T]he defendant . . . knowingly deposited for mailing and
delivery something declared nonmailable . . . not in
accordance with rules and regulations prescribed by the
United States Postal Service, in other words, potassium
cyanide, a poison, which resulted in the death of a person .
. . . All in violation of 18 U.S.C. § 1716(j)(3).
trial, however, the parties and the district court treated
count 1 as if the offense was charged under (j)(2) and
(j)(3), not (j)(1) and (j)(3). During its preliminary
instructions, the district court told the jurors that in
order to find the defendant guilty under count 1, they had to
find, among other things, that the defendant acted "with
the intent to kill or injure another." The jury
instructions proposed by both the government and the
defendant included this "intent to kill or injure
another" element. Not surprisingly, then, the district
court mirrored this language in defining the elements of
count 1 when it charged the jury.
the constructive amendment of an indictment may constitute
grounds for reversal of a conviction, see United States
v. Bucci, 525 F.3d 116, 131 (1st Cir. 2008); cf.
McIvery, 806 F.3d at 651 (reviewing unpreserved claim of
constructive amendment for plain error), the defendant has
not raised this issue on appeal (or, for that matter, in the
district court). Except in rare instances - and this is not
one of them - we have no duty to raise arguments for a party
who has not seen fit to raise those arguments himself.
See, e.g., United States v.
Flete-Garcia, 925 F.3d 17, 38 (1st Cir.), cert.
denied, No. 19-5757, 2019 WL 5150648 (U.S. Oct. 15,
2019); cf. United States v. Mercado-Flores, 872 F.3d
25, 28 (1st Cir. 2017) (noting appellate court's
obligation to raise jurisdictional issues sua sponte). At any
rate, the constructive amendment did not prejudice the
defendant in any respect because it had the effect of adding
another element that the government was required to prove
beyond a reasonable doubt. We therefore conclude that count 1
was constructively amended with the implied consent of the
parties. We proceed accordingly.
ironed out this wrinkle, we now reach the question of whether
the evidence was sufficient to support the defendant's
conviction on count 1 (as constructively amended). To begin,
it is important to note that the defendant challenges the
sufficiency of the evidence only with respect to the
"death resulting" element of the offense. He
contends that his conduct was neither the actual nor the
proximate cause of Denton's death because Denton
voluntarily took his own life.
defendant's conduct is an actual, but-for cause of harm
when that harm would not have occurred without it. See
United States v. Ortiz-Carrasco, 863 F.3d 1, 5 (1st Cir.
2017) (concluding that defendant's conduct was but-for
cause of victim's drowning where defendant embarked on
voyage on overcrowded yola, traveled in rough seas in the
dark, and had no safety equipment aboard). But-for causation
is often regarded as "the minimum requirement
for a finding of causation." Id. (emphasis in
original) (quoting Burrage v. United States, 134
S.Ct. 881, 888 (2014)). A defendant's conduct can be a
but-for cause of harm even when it combines with other
independent causes. See Burrage, 134 S.Ct. at 888.
As Justice Scalia explained: "if poison is administered
to a man debilitated by multiple diseases, it is a but-for
cause of his death even if those diseases played a part in
his demise, so long as, without the incremental effect of the
poison, he would have lived." Id.
the evidence in the light most favorable to the government,
it was more than sufficient to ground a finding that the
defendant's conduct was a but-for cause of Denton's
demise. The jury saw the empty beaker and the mailer with the
defendant's return address recovered from Denton's
home, and it heard evidence of test results indicating that
the residue in the mailer was cyanide. So, too, the jury
heard evidence that a lethal quantity of cyanide had been
discovered in Denton's blood. Finally, the jury heard
testimony from investigators who had determined Denton's
death to be a suicide and had ruled out other causes of
death. If the defendant had not sent Denton a deadly dose of
cyanide, the defendant could not have ingested it and died.
No more was exigible to ground a finding that the
defendant's conduct was a but-for cause of Denton's
defendant rejoins that this conception of the chain of
causation is too "literal" and that Denton's
actions in mixing and ingesting the poison were intervening
events that broke the but-for causal connection. This
rejoinder blinks reality. Although Denton's desire to end
his life surely played a part in his suicide, he would not
have been successful but for the defendant's provision of
cyanide. Viewing the evidence in the requisite light, a
rational factfinder could conclude - as this jury did - that
the defendant actually caused Denton's death.
effort to change the trajectory of the debate, the defendant
tries to invoke the rule of lenity. Marshaling a sampling of
cases in which defendants were charged with mailing
explosives under 18 U.S.C. § 1716, see,
e.g., United States v. Caraway, 534 F.3d
1290, 1292-93 (10th Cir. 2008), the defendant baldly asserts
that Congress did not intend the statute to cover cases of
assisted suicide. This assertion is belied by the broad sweep
of the language that Congress employed. Arraying the evidence
favorably to the government - as we must - the
defendant's actions fall squarely within the four corners
of the conduct that the text of the statute proscribes.
the defendant claims that the rule of lenity requires
construing the statute, notwithstanding its text, to exclude
the conduct with which he was charged. This is wishful
thinking. The rule of lenity only requires reading a criminal
statute in the accused's favor when that statute is so
unclear that courts are left to guess what Congress intended.
See United States v. Ahlers, 305 F.3d 54, 62 (1st
Cir. 2002). To engage the gears of the rule, the lack of
clarity must be genuine: "a statute is not ambiguous
simply because litigants . . . question its
defendant argues that section 1716 is ambiguous because (in
his view) it is meant to cover things like bombs (which are
mailed to unwitting victims and kill immediately), not things
like the cyanide (which he mailed to a person who
specifically requested it and which kills only after some
further act, such as ingestion). The text of the statute of
conviction does not give this argument as much as a shred of
support. As written, the statute has a plain and plausible
meaning. It unambiguously prohibits mailing not only things
like bombs but also poisons, insects, and scabs (which do not
necessarily kill immediately). The sentencing enhancement
applies whenever mailing such an injurious article
"result[s] in the death" of a person. That
enhancement, read in context, is not ambiguous and does not
permit the distinction that the defendant attempts to
insinuate into it. In short, both the superseding indictment