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United States v. Kimber

United States Court of Appeals, Second Circuit

January 30, 2015

UNITED STATES OF AMERICA, Appellee,
v.
MARTIN KIMBER, Defendant-Appellant

Argued December 5, 2014

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[Copyrighted Material Omitted]

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Defendant-Appellant Martin Kimber appeals from a judgment of conviction following his guilty plea to use and possession of a chemical weapon in violation of 18 U.S.C. § 229(a)(1) and consumer product tampering in violation of 18 U.S.C. § 1365(a). Kimber principally argues that his conduct is not covered by § 229(a)(1) in light of the Supreme Court's decision in Bond v. United States, __ U.S. __, 134 S.Ct. 2077, 189 L.Ed.2d 1 (2014), and that the district court erred in applying sentencing adjustments based on (I) Kimber's use of a special skill in the commission of his offenses and (ii) the vulnerability of the victims of his offenses. We conclude that § 229(a)(1) does reach Kimber's conduct and that the challenged sentencing adjustments were proper.

JOHN NICHOLAS IANNUZZI, Iannuzzi and Iannuzzi, New York, New York, for Defendant-Appellant Martin Kimber.

RAJIT S. DOSANJH, Assistant United States Attorney (Craig A. Benedict, Assistant United States Attorney, on the brief), for Richard S. Hartunian, United States Attorney for the Northern District of New York, Syracuse, New York.

Before: SACK, LYNCH and CHIN, Circuit Judges.

OPINION

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Gerard E. Lynch, Circuit Judge

Defendant-Appellant Martin Kimber pled guilty in the United States District Court for the Northern District of New York (Lawrence E. Kahn, Judge ) on November 29, 2012 to an information charging him with one count of use of a chemical weapon in violation of 18 U.S.C. § 229(a)(1) (" Count One" ), one count of possession of a chemical weapon in violation of 18 U.S.C. § 229(a)(1) (" Count Two" ), and one count of consumer product tampering in violation of 18 U.S.C. § 1365(a) (" Count Three" ). The charges arose from Kimber's dispersing liquid mercury at the Albany Medical Center (" AMC" ) in Albany, New York on four separate occasions between March 2011 and March 2012 in an effort to disrupt the facility's services in retaliation for what he considered to be substandard care and excessive billing. Kimber was sentenced on September 19, 2013 principally to 168 months' imprisonment on Counts One and Two, and 120 months' imprisonment on the Count Three, to run concurrently.

On appeal, Kimber challenges his conviction on Counts One and Two, arguing that his conduct is not covered by § 229(a)(1) in light of the Supreme Court's decision in Bond v. United States, __ U.S.__, 134 S.Ct. 2077, 189 L.Ed.2d 1 (2014) (" Bond II" ). He also claims that his counsel below was ineffective for failing to raise such a challenge. Additionally, Kimber argues that his sentence was procedurally unreasonable because the sentencing court erred in: (i) applying a two-level offense adjustment for use of a special skill in the commission of the offenses; (ii) applying a two-level adjustment for the vulnerability of the victims of the offenses; (iii) failing to adequately consider the factors enumerated in 18 U.S.C. § 3553(a); and (iv) failing to adequately explain its choice of sentence. We conclude that § 229(a) reaches Kimber's conduct and that his sentence was not procedurally unreasonable. We therefore AFFIRM the judgment of the district court.

BACKGROUND

After receiving medical treatment from the AMC in December 2010, Martin Kimber grew irate over what he considered to be substandard care and excessive billing. A New York licensed pharmacist for thirty-six years, he decided to retaliate by dispersing elemental mercury throughout the AMC for the stated purpose of " causing panic at the hospital [and its] cafeteria and an attendant loss of business when people became fearful of gaining treatment and eating there." J. App'x at 21. Elemental mercury is a neurotoxin that can be absorbed through ingestion, contact with unbroken skin or, if evaporated, through inhalation. Once in the body, mercury enters the bloodstream and can linger for

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years. It can cause death, brain and nervous system damage, and other serious bodily injuries, with particularly severe effects on young children and in utero fetuses.

On March 28, 2011, Kimber drove the fifty miles to the AMC from his home in Ruby, New York to launch his first of four attacks. He deposited several pounds of mercury in various sections of the AMC, including outside a post-operative care unit and near the triage window in the emergency room. The attack caused hospital officials to close the emergency room while emergency response units collected the mercury, delaying care for many waiting patients. Kimber returned to the AMC for three additional attacks. He deposited another one to two pounds of mercury in an AMC hallway and bathroom on April 11, 2011, and another approximately two pounds in an AMC corridor and pedestrian ramp on June 23, 2011. The fourth attack, on March 2, 2012, focused on the AMC cafeteria. Kimber placed mercury in, among other places, a salad bar, a toaster, a freezer, and in a container of chicken tenders being warmed under a heat lamp. An AMC employee who purchased the chicken tenders was taken to the emergency room after potentially ingesting the mercury. Luckily, neither she nor anyone else suffered mercury poisoning from the attacks.

Prior to the fourth attack, the AMC had installed additional security cameras in response to the previous incidents. The local news displayed photographs of a suspect taken from the security footage, and the Albany Police Department received three tips identifying the suspect as Kimber. On March 29, 2012, Kimber was arrested at his home. Officers seized a container of mercury from Kimber's car and another from his garage.

Kimber pled guilty to the information on November 29, 2012. Under the terms of his plea agreement, Kimber waived his right to appeal or collaterally attack his conviction and any sentence of imprisonment of 120 months or less. The plea agreement included a section titled " Factual Basis for the Plea." In that section, Kimber acknowledged that the purpose of his attacks was " to retaliate for hospital bills that he felt were unfair by causing panic at [AMC's] hospital/cafeteria and an attendant loss of business when people became fearful of gaining treatment and eating there." J. App'x at 21. Kimber admitted that he understood mercury's harmful effects on humans and that " to receive and maintain his license and work as a licensed pharmacist, [he] received education and training on the effects, harmful and otherwise, of chemicals and substances on the human body, as well as how to research such effects." Id. at 19. Kimber also acknowledged that he understood " that the heating of elemental mercury, including the placing of mercury on or in toasters, and on or around heated food, greatly increased the likelihood that mercury would vaporize into the air and be inhaled by individuals consuming such food or . . . [located] near such heating devices." Id. at 19-20.

The Presentence Investigation Report (" PSR" ), issued on July 30, 2013, elaborated on the risks inherent in Kimber's attacks. It noted that elemental mercury is a " silvery liquid at room temperature" that has a " very high vapor pressure and readily evaporates into the air at room temperature[,] where it can cause an extreme hazard if inhaled." PSR ¶ 40. The PSR found that " [a]t room temperature mercury is highly volatile and absorbed into the blood with efficiency approaching 80% by inhalation" and that, at temperatures reached in a toaster, even a teaspoon of mercury can cause concentration levels

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within five feet to exceed " 30 times the observable toxic effect level for persistent nervous system damage." PSR ¶ 42.

The PSR calculated a base offense level of 28 and recommended a four-level increase for " substantial disruption of public, governmental, or business functions or services" pursuant to U.S.S.G. § 2M6.1(b)(3), a two-level increase for use of a special skill in the commission of the offenses pursuant to U.S.S.G. § 3B1.3, and a three-level decrease for acceptance of responsibility pursuant to U.S.S.G. § 3E1.1. The resulting total offense level of 31 and criminal history category of I yielded a Guidelines range of 108 to 135 months.

Kimber did not contest the facts presented in the PSR but challenged the two-level increase for use of a special skill on the ground that the offenses, as committed, involved no special skill. For its part, the government argued that the PSR was mistaken in not recommending an additional two-level increase pursuant to U.S.S.G. § 3A1.1, which applies " [i]f the defendant knew or should have known that a victim of the offense was a vulnerable victim." The PSR explained that " a victim-related adjustment was considered in view of the commission of the offense at a hospital wherein individuals who are vulnerable due to their physical condition could potentially have been victimized, such as patients in the emergency room," but the adjustment was not recommended because " no known vulnerable victims have been identified as being impacted or targeted by the offense." PSR ¶ 73. The government contended that patients whose care was delayed when Kimber's attack shut down AMC's emergency room were victims of his offenses, and that § 3A1.1 did not require that a victim be targeted because of her vulnerability.

Kimber was sentenced on September 19, 2013. The court adopted the findings and recommendations of the PSR, except that it applied a ...


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