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United States v. Kilmartin

United States Court of Appeals, First Circuit

December 6, 2019

SIDNEY P. KILMARTIN, Defendant, Appellant.


          Jamesa J. Drake, with whom Drake Law LLC was on brief, for appellant.

          Benjamin M. Block, Assistant United States Attorney, with whom Halsey B. Frank, United States Attorney, was on brief, for appellee.

          Before Barron, Selya, and Boudin, Circuit Judges.


         This 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.

         In this 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.

         I. BACKGROUND

         We 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).

         In 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.

         The 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).

         One of 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).

         In his 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.

         The 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.

         Notwithstanding 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);[1] 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.

         The 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 another victim.

         When 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.

         II. ANALYSIS

         The 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 arguments below.

         Before 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.

         Although 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.

         A. Judgment of Acquittal: Count 1.

         It is 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.

         1. Constructive Amendment.

         As 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.

         "A 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.

         In this instance, the statute of conviction provides in relevant part:

(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 life.

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).

         At 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).[2] 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.

         Although 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.

         2. The Merits.

         Having 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[3] of Denton's death because Denton voluntarily took his own life.

         The 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.

         Appraising 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 death.

         The 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.

         In an 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.

         Undaunted, 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 interpretation." Id.

         The 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 (as ...

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