U.S. v. Gilbert

• Decision Date: 12 September 2000
• Docket Number: Nos. 00-1810,00-1902,00-1893,s. 00-1810
• Citation: 229 F.3d 15
• Parties: (1st Cir. 2000) UNITED STATES, APPELLANT, V. KRISTEN GILBERT, DEFENDANT, APPELLEE. . Heard
• Court: U.S. Court of Appeals — First Circuit

Page 15

229 F.3d 15 (1st Cir. 2000)

UNITED STATES, APPELLANT,

V.

KRISTEN GILBERT, DEFENDANT, APPELLEE.

Nos. 00-1810, 00-1893, 00-1902.

United States Court of Appeals, For the First Circuit.

Heard September 12, 2000.

Decided October 3, 2000.

APPEALS FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS.

Hon. Michael A. Ponsor, U.S. District Judge.

[Copyrighted Material Omitted] William M. Welch, II, Assistant United States Attorney, with whom Ariane D. Vuono, Assistant United States Attorney, and Donald K. Stern, United States Attorney, were on brief for appellant.

David P. Hoose, with whom Katz, Sasson, Hoose and Turnbull, Harry L. Miles, and Green Miles, et al. were on brief, for appellee.

Before Selya, Circuit Judge, Coffin, Senior Circuit Judge, and Stahl, Circuit Judge.

Stahl, Circuit Judge.

These interlocutory appeals challenge in limine orders excluding three blocs of evidence the government wishes to present during the upcoming capital murder trial of defendant Kristen Gilbert. See 18 U.S.C. § 3731 (permitting an appeal by the government of an order excluding evidence in a criminal case so long as the defendant has not yet been put in jeopardy and the United States attorney certifies that the appeal is not taken for purpose of delay and that the evidence is substantial proof of a fact material in the proceeding). Mindful that in limine evidentiary rulings are generally provisional, see United States v. Lachman, 48 F.3d 586, 590, 594 (1st Cir. 1995) (emphasizing that in limine orders excluding evidence usually can be revisited if developments at trial so warrant), and believing that the circumstances surrounding these rulings dictate that we accord broad deference to the district court's views, we affirm in all respects except one.

I.

Because these are interlocutory appeals of pretrial orders, we cull the relevant background not from an established evidentiary basis, but rather from the parties' proffers, the district court's characterizations of these proffers in its several opinions addressing matters relevant to these appeals, and our decision in United States v. Gilbert, 181 F.3d 152 (1st Cir. 1999), which affirmed a jury verdict convicting Gilbert of telephoning a bomb threat to the Veteran's Affairs Medical Center (VAMC) during a criminal investigation of the events giving rise to this prosecution. The following recitation is thus only a summary, taken from these sources, of what the parties have told us that the evidence in this case will show.

Gilbert was employed as a nurse at the VAMC in Leeds, Massachusetts, from March 1989 through February 1996. At all relevant times, she was assigned to Ward C and worked the late-afternoon to midnight shift four days per week. Ward C houses chronically ill patients and the hospital's intensive care unit.

Beginning in the summer of 1995, Gilbert befriended James Perrault, a hospital police officer whose work schedule roughly corresponded to hers and whose duties required him to respond to medical emergencies in Ward C. By fall, Gilbert was having an extramarital affair with Perrault. At the time, Gilbert was married to one Glenn Gilbert, with whom she had two children.

In the months following the inception of her relationship with Perrault and continuing until Gilbert terminated her employment at the VAMC in February 1996, Gilbert's colleagues perceived a marked rise in the number of fatalities and emergencies in Ward C. Members of the VAMC staff also perceived a concomitant increase in the hospital's procurement of the drug epinephrine during this time. These perceptions prompted first an investigation by the Office of Healthcare Inspections of the Department of Veterans Affairs (OHCI) - an investigation that concluded that there was no evidence that any VAMC employee had intentionally harmed patients - and eventually a criminal investigation that led to Gilbert's arrest.

During the course of the criminal investigation, and at times Gilbert knew Perrault would be answering the telephone, Gilbert made a series of anonymous, threatening calls to the VAMC. In one of these calls, Gilbert made the false bomb threat for which she stands convicted. See generally Gilbert, 181 F.3d 152. Gilbert also directly harassed and threatened Perrault, who had ended their relationship and agreed to cooperate with the authorities, and expressed anger towards certain co-workers who cooperated with the criminal investigation but would not speak with her own private investigator. In addition, Gilbert once attempted to obstruct the criminal investigation by temporarily blocking Perrault's car in his driveway and pleading with Perrault not to keep an appointment with criminal investigators looking into goings-on at the VAMC. After Perrault refused her request, Gilbert followed him and then vandalized his car while he was being interviewed.

The most recent indictment in this case alleges that, in the six-month period following the commencement of her relationship with Perrault, Gilbert killed four Ward C patients, and attempted to kill three others, by intravenously poisoning them with epinephrine (and insulin, in the case of one diabetic patient).¹ Epinephrine, a clear, odorless liquid, is medically indicated for resuscitating patients in a state of cardiac arrest or anaphylactic shock, but causes a potentially fatal rapid or irregular heartbeat when administered in excessive doses. The four deaths and three near-deaths all involved some sort of cardiac arrest on the part of the victim.

According to the government, Gilbert committed these crimes using the following modus operandi. She would obtain epinephrine from Ward C's medicine cabinet, enter the patient's hospital room after all other medical personnel had left, and inject the patient with a fatal dose of epinephrine under the pretense of flushing his intravenous line with a saline solution, an unusual and potentially dangerous practice. The government's theory is that, by thus injecting non-prescribed medication into these patients, all of whom suffered from differing degrees of cardiac troubles, Gilbert was able to generate medical emergencies, or "codes," in which she plausibly could claim to be responding to naturally occurring cardiac emergencies. Gilbert orchestrated these codes, in the government's view, because they brought her into contact with Perrault, and because they provided her with the attention and excitement that she craved. The government's principal evidence in support of its theory consists of two admissions Gilbert made to Perrault and toxicological evidence garnered from those Gilbert allegedly murdered.

Although no jurisdiction has indicted her for it, the government also claims that, in November 1995, Gilbert attempted to murder her husband, Glenn, by poisoning him with potassium. On November 5, 1995, Glenn Gilbert was hospitalized for gastroenteritis (a condition the government alleges was induced by Gilbert's introduction of low doses of diuretics into her husband's food over the preceding several weeks) and diagnosed with having unusually low levels of potassium and glucose in his blood. This combination of factors caused his heart to beat irregularly, resulting in a cardiac arrythmia. Following his discharge, Gilbert complained to others about the fact that her husband had been released without a follow-up potassium-level blood test. The government alleges that these complaints set the stage for the attempted murder.

According to the government, Gilbert came home from work shortly after the aforementioned hospitalization with two syringes, one of which was filled with a clear, odorless liquid, and told her husband that she wanted to take a blood sample back to the VAMC for additional potassium-level testing. Gilbert then informed her husband that she first would have to inject saline into his arm to flush the vein. As he was receiving the injection, Glenn Gilbert's arms and chest became numb. He tried to pull away, but Gilbert pinned him against the wall with her hip and continued the injection. Glenn Gilbert briefly lost consciousness, but came to and survived without any outside medical intervention. Gilbert allegedly explained away the incident by informing her husband that he had fainted at the sight of the needle. The government contends that Gilbert actually injected her husband with potassium in hopes of inducing a fatal cardiac arrest. Glenn Gilbert did not report this incident to the authorities until months after its occurrence, at a time when he and his wife were involved in a bitter divorce and child custody dispute.

For her part, Gilbert denies any fault for the deaths and other cardiac incidents charged in the indictment. She claims that these deaths and all but one of the near-deaths resulted from natural causes precipitated by pre-existing medical conditions suffered by the alleged victims. With respect to one near-death allegedly brought on by insulin poisoning, Gilbert contends that negligence on the part of VAMC physicians caused her unwittingly to administer, on their orders, an excessive dosage. Gilbert apparently will introduce expert medical testimony at trial to substantiate her theories and refute the government's. As to the alleged attempted murder of her husband, Gilbert takes the position that she was, in fact, merely attempting to draw blood from his arm, and that his loss of consciousness was an insignificant "fainting episode."

In a number of motions in limine, the government sought to establish prior to trial the admissibility of the following blocs of evidence: (1) evidence pertaining to Gilbert's attempted murder of Glenn Gilbert by means of a method similar to the one allegedly used on the VAMC victims; (2) evidence pertaining to Gilbert's anonymous bomb threat and her direct harassment of Perrault; and (3) evidence pertaining to the perceptions of the nurses in Ward C that, between the fall of 1995 and February 1996,...