BANGOR, Maine — The South Windham man accused of mailing potassium cyanide to a man in England who committed suicide has asked to have his federal indictment dismissed.
The attorney for Sidney P. Kilmartin, 52, argued in a motion filed Friday that the law under which Kilmartin was charged applies to letter bombs intended to kill the people who open them.
Assistant U.S. Attorney Halsey Frank, who is prosecuting the case, said Friday that he would oppose the motion.
Kilmartin pleaded not guilty Nov. 5, 2014, in U.S. District Court in Bangor to one count each of mailing injurious articles and mailing injurious articles that resulted in death. He is being held without bail at the Somerset County Jail.
According to the indictment, Kilmartin caused the death of Andrew Denton of Hull, England, when he mailed potassium cyanide to him once in November 2012 and again the following month.
Denton’s death was ruled a suicide, according to the motion to dismiss the indictment filed by Kilmartin’s attorney, James Billings of Augusta. Denton’s body was found on Dec. 31, 2012, at his home by a relative.
In 2013, police launched an investigation into how Denton, 49, obtained the potassium cyanide found in his system in an autopsy, the motion said. Denton suffered from depression and had made previous suicide attempts.
Billings said in his motion to dismiss the indictment that even if Kilmartin admitted mailing cyanide to Denton, his actions would not fit the intent of the statute under which he has been charged.
“The federal interest in [the statute] is the protection of persons from misuse of the federal mail system to intentionally cause injury or death,” the attorney wrote. “The legislative history makes this interest clear through an express declaration that Congress wished to [make] the use of bombs via the mail [a federal crime]. There is no federal interest, however, in policing the subsequent use of items by recipients.”
Billings said that if the law means what federal prosecutors have said it does in this case, it would “make untold numbers of senders of nonmailable matter responsible under federal law for the actions of recipients.”
In a separate motion filed Friday, Billings said that Kilmartin would decide whether to change his plea to not guilty by reason of insanity by the end of March.
Kilmartin was found not criminally responsible on Sept. 9, 2009, for crimes he committed in 2007, including the aggravated assault of an elderly man, and was committed to Riverview Psychiatric Center in Augusta, according to a previously published report.
Kilmartin was in the custody of the Department of Health and Human Services when he allegedly sent the poison to England but living in the community, rather than at Riverview. At Kilmartin’s bail hearing on Dec. 8, Billings told U.S. Magistrate Judge John Nivison that Riverview had refused to house Kilmartin while he awaited trial on the federal charges.
If convicted, Kilmartin faces up to life in federal prison. The U.S. attorney’s office in Maine is not seeking the death penalty, according to court documents.