United States v. Kilmartin

Decision Date06 December 2019
Docket NumberNo. 18-1513,18-1513
Citation944 F.3d 315
Parties UNITED STATES of America, Appellee, v. Sidney P. KILMARTIN, Defendant, Appellant.
CourtU.S. Court of Appeals — First Circuit

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.

SELYA, Circuit Judge.

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.


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.


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...

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