NY Mercury Attacks Justify Long Sentence

MANHATTAN (CN) - The 2nd upheld the lengthy sentence Friday for the New Yorker who used a chemical weapon by leaving liquid mercury at an Albany trauma center.

Martin Kimber pleaded guilty in 2012 to planting mercury four times at Albany Medical Center Hospital in retaliation for what he considered poor care and high bills. At sentencing, he received concurrent terms of 14 years for chemical-weapon possession and use, and 10 years for consumer-product tampering.

Kimber, a licensed pharmacist, was arrested after hospital security cameras finally captured an image of the individual sought for months in connection with mercury left in hallways, near the emergency room and outside a post-operative care unit. In the last incident, cafeteria food and equipment were tainted with mercury.

Authorities arrested Kimber at his home in Ruby, near Kingston, about an hour south of Albany, after images from the security video were distributed to the media.

No one was seriously injured in the attacks, although a hospital employee was treated after ingesting chicken tenders from the cafeteria that were exposed to mercury.

Elemental mercury is a neurotoxin that can cause brain and nervous system damage and death when ingested, absorbed through the skin or inhaled; it vaporizes when heated. Young children and the unborn are particularly vulnerable.

In 2013, Kimber appealed his federal sentence, which included extra time because he used a "special skill" in the crime - his knowledge as a pharmacist - and because "vulnerable victims" - hospital patients - were affected.

The hospital is a regional trauma center for about 3 million people within a 150-mile radius of Albany.

Kimber revised his appeal last year in light of the U.S. Supreme Court's resolution of Bond v. U.S. , which found that a local bad act - trying to poison a mistress - did not rise to the level of harm covered by the Chemical Weapons Convention Implementation Act of 1998.

The 2nd Circuit rejected both arguments Friday, rejecting the attempt by Kimber to liken his case to that of Carol Anne Bond, a Pennsylvania microbiologist who used a combination of chemicals to create a substance that she hoped would give an "uncomfortable rash" to her best friend, who was having an affair with her husband.

In the ruling on Bond's case last year, the Supreme Court had emphasized that Bond's was an "unremarkable local offense."

The government's reading of the chemical weapons statute would transform it "from one whose core concerns are acts of war, assassination and terrorism into a massive federal anti-poisoning regime that reaches the simplest of assaults," the court said.

Kimber failed to sway the 2nd Circuit that his crime was similarly local, having not caused any significant injury with commercially available chemicals.

The Manhattan-based federal appeals court said Friday that "each of these contentions ignores important distinctions."

First, Kimber did not leave the liquid mercury at a private residence or in a neighbor's car. Rather he "targeted an institution 50 miles from his home that provides the public with vital services," Judge Gerard Lynch wrote for the three-judge panel.

"Exposing many members of the public to a dangerous chemical presents a far cry from the 'local assault[s]' aimed at one individual," the ruling continues.

And while Kimber's attacks caused no significant injury, "it is sufficient that he placed many people at risk of serious harm," Lynch said, pointing out that the mercury left in a cafeteria toaster could have vaporized when heated and then been inhaled by staff and visitors alike.

Lynch also noted that Kimber admitted to wanting to disrupt hospital operations in retaliation for the way he felt he was treated.

"Kimber's stated purpose of coercing and intimidating the public into forgoing treatment at the AMC renders his conduct quintessential terrorism," Lynch said.

An enhanced sentence was also appropriate here, the court found, noting Kimber's acknowledgement that he possessed a relevant "special skill" as a licensed pharmacist - knowing how chemicals affect the human body.

Lynch pointed out that Kimber admitted in his plea agreement that he understood that when mercury is heated it could vaporize and be inhaled.

That showed that Kimber "used his special knowledge of chemicals to facilitate his offense because the 'special skills increase[d] his chances of succeeding,'" Lynch wrote, quoting an earlier circuit ruling.

Kimber faced no better in trying to undermine the "vulnerable victim" enhancement by virtue of the "sheer luck" that his mercury didn't actually poison anyone, the court found.

"Clearly, a defendant who attempts to disrupt the functioning of a hospital emergency room would know or should know that his conduct is likely to harm particularly vulnerable individuals needing immediate care," the ruling states.

Judges Robert Sack and Denny Chin concurred.

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