United States v. Kilmartin, 2016 U.S. Dist. LEXIS 135299 (D. Me. Sept. 30, 2016):

With trial looming, Sidney Kilmartin moves to preclude the Government from introducing email statements made by Andrew Denton, as well as expert testimony of toxicologist Dr. Cynthia Morris-Kukoski. The Court rules that the email statements by the late Andrew Denton are not hearsay and are admissible and that the testimony of Dr. Morris-Kukoski is admissible subject to the Defendant's specific objections of prejudice.

I. BACKGROUND

Sidney Kilmartin is charged in a fifteen count indictment with mail fraud, wire fraud, retaliation against a witness, witness tampering, and mailing injurious items resulting in death. Indictment (ECF No. 3).¹ The Government has alleged that Mr. Kilmartin engaged in a scheme of defrauding individuals he had encountered on the internet by promising to mail potassium cyanide to these people, accepting their money, [*2]  and then mailing Epsom salts instead of potassium cyanide. Gov't's Trial Brief at 3-4 (ECF No. 103). With respect to Mr. Denton, the Government has further alleged that after Mr. Denton filed a complaint against Mr. Kilmartin for mailing him Epsom salts, Mr. Kilmartin sent him actual potassium cyanide, which Mr. Denton used to kill himself. Id.

1   Counsel informed the Court that Mr. Kilmartin intends to plead guilty to nine of the fifteen counts in the superseding indictment, specifically Counts 2, 3, 4, 6, 8, 9, 10, 11, and 13; the Court scheduled the case for a Rule 11 hearing on those counts on October 3, 2016 just before jury selection on the remaining counts. See Notice of Hr'g (ECF No. 131).

On September 12, 2016, Mr. Kilmartin filed a motion in limine to preclude the Government from introducing at trial emails written by Mr. Denton and expert testimony of Dr. Morris-Kukoski. Def.'s Mot. in Limine (ECF No. 112) (Def.'s Mot.). As to the emails written by Mr. Denton, Mr. Kilmartin argues that these statements represent inadmissible hearsay and that they do not fit within any exception. Id. at 2-5. Specifically, he argues that the statements do not fall within Rule 804(b)(2)'s exception for statements made under belief [*3]  of imminent death because the email correspondence occurred many days before Mr. Denton's suicide and because it is undisputed that Mr. Denton killed himself. Id. at 3. Additionally, he argues that the statements do not fit Rule 804(b)(6)'s exception for statements offered against a party that wrongfully caused the declarant's unavailability because Mr. Denton caused his own death by suicide and there were no pending charges against Mr. Kilmartin at the time of Mr. Denton's death. Id. at 3-4. Mr. Kilmartin also claims that the correspondence would cause a Confrontation Clause issue. Id. at 4.

As for Dr. Morris-Kukoski's testimony, Mr. Kilmartin argues that the testimony is not relevant to any element of any offense with which Mr. Kilmartin is charged and that the Government already has several witnesses prepared to testify that Mr. Denton died from his own ingestion of a lethal amount of potassium cyanide. Id. at 5. Mr. Kilmartin further argues that even if the testimony has some probative value, that value is outweighed by the prejudice that would be created if Dr. Morris-Kukoski is allowed to testify about what potassium cyanide does to the body. Id. at 6.

The Government filed its opposition to Mr. Kilmartin's motion on September 19, 2016. Gov't's Opp'n to [*4]  Def.'s Mot. in Limine (ECF No. 122) (Gov't's Opp'n). The Government first argues that Mr. Denton's statements should be admitted. Id. at 2. Citing caselaw, the Government maintains that the statements are not hearsay because they provide context in which to understand Mr. Kilmartin's own statements and because they are probative as res gestae of Mr. Kilmartin's fraud. Id. at 2-3. The Government states that even if the statements constitute hearsay, they are admissible pursuant to the exceptions for dying declarations and forfeiture by wrongdoing. Id. at 3-5.

The Government also argues that Dr. Morris-Kukoski should be allowed to testify because the testimony is relevant and not unduly prejudicial or cumulative. Id. at 5-8. The Government outlines the elements of the offenses charged, presents its theory of the case, and explains how Dr. Morris-Kukoski's testimony will assist the jury in determining the relevant facts and issues. Id.

II. DISCUSSION

A. Email Statements by Andrew Denton

Mr. Kilmartin seeks to exclude the email correspondence from Mr. Denton on the grounds that it is hearsay that does not fall within any exception. The Court disagrees. Hearsay is a statement that "(1) the declarant does not make while testifying [*5]  at the current trial or hearing; and (2) a party offers in evidence to prove the truth of the matter asserted in the statement." FED. R. EVID. 801(c). The First Circuit has found that out-of-court statements offered not to prove the truth of the matter asserted, but merely to show context, are not hearsay. United States v. Cruz-Díaz, 550 F.3d 169, 176 (1st Cir. 2008) (statement offered for the limited purpose of showing what effect the statement had on the listener is not hearsay); United States v. Bailey, 270 F.3d 83, 87 (1st Cir. 2001) (statement "offered to show the effect of the words spoken on the listener (e.g., to supply a motive for the listener's action) is not hearsay"); United States v. Catano, 65 F.3d 219, 225 (1st Cir. 1995) (other parts of a conversation that are "reciprocal and integrated utterance(s) . . . reasonably required to place [the defendant's] admissions into context" are not hearsay).

Here, the emails from Mr. Denton contain complaints to Mr. Kilmartin, which the Government seeks to introduce in order to provide context for Mr. Kilmartin's own correspondence² and to show the effect on Mr. Kilmartin, namely his decision to reveal his source and to send Mr. Denton real cyanide. To the extent that the Government seeks to introduce the emails for this purpose, they are not hearsay.

2   Mr. Kilmartin's own emails are admissible as an opposing party statement [*6]  pursuant to FED. R. EVID. 801(d)(2)(A).

Moreover, even if the Government does introduce Mr. Denton's emails for the truth of the matters asserted in them, they would be admissible as a hearsay exception. Rule 804 provides an exception to the hearsay rule when a declarant is unavailable as a witness and the statement is being "offered against a party that wrongfully caused -- or acquiesced in wrongfully causing -- the declarant's unavailability as a witness, and did so intending that result." FED. R. EVID. 804(b)(6). Mr. Denton is unavailable within the meaning of this Rule as he is dead. See FED. R. EVID. 804(a)(4). Even though Mr. Denton died of his own hand, the Government has alleged that Mr. Kilmartin sold the poison that Mr. Denton used to kill himself. The rationale underlying this rule is that "courts will not suffer a party to profit by his own wrongdoing." United States v. Houlihan, 92 F.3d 1271, 1279 (1st Cir. 1996).

It is true that the Confrontation Clause provides that "[i]n all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against him." U.S. CONST. amend VI. However, the First Circuit has held:

   [W]hen a person who eventually emerges as a defendant (1) causes a potential witness's unavailability (2) by a wrongful act (3) undertaken with the intention of preventing the witness from testifying at a future trial, [*7]  then the defendant waives his right to object on confrontation grounds to the admission of the unavailable declarant's out-of-court statements at trial.

Houlihan, 92 F.3d at 1280; see also Giles v. California, 554 U.S. 353, 358-59 (2008). The government need only prove the predicate facts essential to a waiver by a preponderance of the evidence. Houlihan, 92 F.3d at 1280.

In this case, a grand jury has already found probable cause to indict Mr. Kilmartin for witness tampering and retaliation. Additionally, the Government states that it will produce evidence at trial that Mr. Kilmartin intended to prevent Mr. Denton from cooperating and testifying against him by sending him cyanide, such as emails from Mr. Kilmartin to Mr. Denton in which Mr. Kilmartin expresses concern that the FBI may be investigating him and asks Mr. Denton to destroy evidence of their interaction before killing himself. Gov't's Opp'n at 4-5. Given this information, the Court finds that there is probable cause to establish that the Defendant caused Mr. Denton's unavailability, by a wrongful act, undertaken to prevent him from testifying or cooperating with law enforcement. Therefore, the Court concludes that the email correspondence by Mr. Denton is admissible.³

3   The Court does not reach the Government's argument [*8]  that the email statements would be admissible under Rule 804(b)(2) as a dying declaration.

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