United States v. Kenneth Olsen
2013 U.S. App. LEXIS 450
9th Cir.2013Background
- Olsen was convicted in 2003 of knowingly possessing a biological agent, toxin, or delivery system for use as a weapon under 18 U.S.C. § 175 and of possessing a chemical weapon under § 229.
- Evidence showed Olsen researched poisons, including ricin, and conducted extensive internet searches on undetectable and undelivered poisons and delivery methods.
- Items from Olsen’s cubicle tested positive for ricin; capsules were tainted with ricin, though testing of whether ricin was inside or on the surface of capsules was inconclusive.
- WSP internal investigation documents about the science examiner Melnikoff were produced to the trial court late and not disclosed to Olsen's counsel; Bradford-like materials questioned his credibility.
- The district court allowed trial testimony from Melnikoff and later considered Brady material; Olsen challenged the non-disclosure and raised juror-bias claims.
- Olsen sought relief under 28 U.S.C. § 2255; the district court denied in part, and this court granted a COA on Brady, ineffective assistance, juror bias, and cumulative-error issues.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Brady violation regarding Melnikoff file | Olsen argues the WSP internal file was favorable and suppressed. | Government contends material not favorable or not material to the outcome. | No material Brady violation; not material to the outcome. |
| Juror bias | Biased juror Leavitt concealed knowledge and lied on voir dire; implicit bias and McDonough-kind bias possible. | District court found no actual or implied bias; credibility determinations should stand. | No reversible juror bias; district court findings affirmed. |
| Ineffective assistance of counsel | Counsel failed to obtain Brady materials, prejudicing Olsen. | No prejudice from withheld Brady material; Strickland prejudice aligned with Brady materiality. | Brady-materiality absence defeats Strickland prejudice; ineffective assistance claim fails. |
| Cumulative error | Combined errors (jury instruction, guilt-hypothetical questions, Brady suppression) violated due process. | Errors were cured or lacked substantial impact; no fundamental unfairness. | Cumulative-error claim rejected; trial not fundamentally unfair. |
Key Cases Cited
- United States v. Agurs, 427 U.S. 97 (1976) (materiality of exculpatory evidence; pretrial disclosure standards)
- United States v. Bagley, 473 U.S. 667 (1985) (standard for materiality of Brady evidence; impeachment values)
- Strickler v. Greene, 527 U.S. 263 (1999) (Brady suppression and materiality framework; Strickler standard)
- Kyles v. Whitley, 514 U.S. 419 (1995) (materiality and prejudice standard for Brady evidence)
- Gentry v. Sinclair, 693 F.3d 867 (9th Cir. 2012) (Brady materiality and discovery obligations; standard of review)
- Kohring v. United States, 637 F.3d 895 (9th Cir. 2011) (admissibility and impeachment material; ongoing investigations favorable under Brady)
- Price v. Bellevue, 566 F.3d 900 (9th Cir. 2009) (early disclosure and materiality considerations; trial-stage discovery)
- Dyer v. Calderon, 151 F.3d 970 (9th Cir. 1998) (implied bias and lies during voir dire; standards for discovery of juror issues)
- Green v. White, 232 F.3d 671 (9th Cir. 2000) (implied bias from pattern of misleading statements in juror background)
- McDonough Power Equipment v. Greenwood, 464 U.S. 548 (1984) (due process and voir dire; basis for challenging juror)