United States v. Kimber
777 F.3d 553
| 2d Cir. | 2015Background
- Martin Kimber, a licensed pharmacist, pled guilty to using and possessing a chemical weapon (18 U.S.C. § 229(a)(1)) and consumer product tampering after placing elemental mercury at Albany Medical Center (AMC) on four occasions to cause panic and loss of business.
- Mercury was placed in high-traffic areas including near the ER triage, hallways, and in the cafeteria (including a toaster and heated food); the ER was closed during one incident and an employee who may have ingested contaminated food sought medical attention.
- Kimber admitted knowledge of mercury’s hazards and that heating mercury (e.g., in a toaster) increases vaporization and inhalation risk; containers of mercury were later found at his home/car after surveillance tips.
- The PSR calculated an adjusted Guidelines offense level (base 28, +4 substantial disruption, +2 special-skill, -3 acceptance) yielding 108–135 months; the district court applied an additional +2 vulnerable-victim adjustment, raising the range to 135–168 months.
- Kimber was sentenced to 168 months on Counts One and Two (concurrent with 120 months on Count Three). He appealed, arguing Bond v. United States (Bond II) foreclosed § 229(a)(1) liability and that counsel was ineffective for not raising that challenge; he also argued procedural sentencing errors.
- The Second Circuit affirmed: it held Kimber’s conduct falls within § 229(a)(1) even after Bond II, rejected the ineffective-assistance claim, and upheld the special-skill and vulnerable-victim adjustments and the sentence explanation.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Applicability of § 229(a)(1) (Chemical Weapons Act) | Bond II means § 229(a)(1) does not reach local, non-mass-harm incidents like Kimber’s | Kimber: his acts were local, caused no significant injury, and used a commercial chemical, so Bond II precludes § 229 liability | Court: § 229 covers Kimber — he targeted a public, regionally critical hospital, placed many at risk, used means intended to terrorize/coerce; Bond II does not bar prosecution here |
| Ineffective assistance for failing to challenge § 229 | Kimber: counsel should have anticipated Bond II and challenged § 229, and he would not have pled if informed | Government: no binding precedent invalidated § 229 pre-plea; challenge would have been meritless | Court: counsel not deficient — no reasonable basis then; moreover, Bond II does not invalidate Kimber’s § 229 liability |
| Special-skill enhancement (U.S.S.G. § 3B1.3) | Kimber: although licensed, he did not use his special skill to facilitate the offenses | Government: Kimber’s admitted knowledge (placing mercury in toaster/near heated food) shows use of special skill to increase success | Court: Enhancement proper — plea admissions show he used pharmaceutical/chemical expertise to facilitate harm |
| Vulnerable-victim enhancement (U.S.S.G. § 3A1.1) | Kimber: no actual poisoning occurred, so no victims and no basis for adjustment | Government: hospital patients (e.g., critically ill awaiting ER care) were affected; targeting a hospital foreseeably risks vulnerable persons | Court: Adjustment proper — delay/closure of ER and exposure risk made patients victims; actual injury not required when defendant knew or should have known victims were vulnerable |
Key Cases Cited
- Bond v. United States, 134 S. Ct. 2077 (2014) (statute implementing Chemical Weapons Convention does not reach every local poisoning-type offense; scope depends on chemicals used and circumstances)
- Strickland v. Washington, 466 U.S. 668 (1984) (two-part test for ineffective assistance of counsel)
- Massaro v. United States, 538 U.S. 500 (2003) (ineffective-assistance claims generally resolved in § 2255 proceedings, but may be decided on direct appeal in some cases)
- United States v. Fritzson, 979 F.2d 21 (2d Cir. 1992) (special-skill enhancement applies when defendant’s expertise increases likelihood of success)
- United States v. Hershkowitz, 968 F.2d 1503 (2d Cir. 1992) (vulnerable-victim enhancement reflects heightened culpability when victim selection shows extra depravity)