704 F.3d 1172 (9th Cir. 2013), 10-36063, United States v. Olsen

Docket Nº:10-36063, 10-36064.
Citation:704 F.3d 1172
Opinion Judge:FRIEDMAN, District Judge:
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. Kenneth R. OLSEN, Defendant-Appellant. United States of America, Plaintiff-Appellee, v. Kenneth R. Olsen, Defendant-Appellant.
Attorney:Peter Offenbecher (argued), Skellenger Bender, P.S., Seattle, WA, and Robert C. Owen, Owen & Rountree, L.L.P., Austin, TX, for Defendant-Appellant. Michael C. Ormsby, United States Attorney; Stephanie Van Marter (argued) and Earl A. Hicks, Assistant United States Attorneys, United States Attorney...
Judge Panel:Before: MARY M. SCHROEDER and RONALD M. GOULD, Circuit Judges, and PAUL L. FRIEDMAN, Senior District Judge.[*]
Case Date:January 08, 2013
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit
 
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704 F.3d 1172 (9th Cir. 2013)

UNITED STATES of America, Plaintiff-Appellee,

v.

Kenneth R. OLSEN, Defendant-Appellant.

United States of America, Plaintiff-Appellee,

v.

Kenneth R. Olsen, Defendant-Appellant.

Nos. 10-36063, 10-36064.

United States Court of Appeals, Ninth Circuit.

January 8, 2013

Argued and Submitted Aug. 30, 2012.

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Peter Offenbecher (argued), Skellenger Bender, P.S., Seattle, WA, and Robert C. Owen, Owen & Rountree, L.L.P., Austin, TX, for Defendant-Appellant.

Michael C. Ormsby, United States Attorney; Stephanie Van Marter (argued) and Earl A. Hicks, Assistant United States Attorneys, United States Attorney's Office, Spokane, WA, for Plaintiff-Appellee.

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Appeal from the United States District Court for the Eastern District of Washington, Wm. Fremming Nielsen, Senior District Judge, Presiding. D.C. Nos. 2:09-cv-00326-WFN, 2:03-cr-00084-WFN, 2:09-cv-00327-WFN, 2:02-cr-00184-WFN.

Before: MARY M. SCHROEDER and RONALD M. GOULD, Circuit Judges, and PAUL L. FRIEDMAN, Senior District Judge.[*]

OPINION

FRIEDMAN, District Judge:

Kenneth Olsen was convicted in 2003 of knowingly possessing a biological agent, toxin, or delivery system for use as a weapon, in violation of 18 U.S.C. § 175. This court affirmed his conviction on direct appeal. See United States v. Olsen, 120 Fed.Appx. 18 (9th Cir.2004). In 2009, Olsen filed a motion to vacate, set aside, or correct his sentence under 28 U.S.C. § 2255, raising a number of grounds for relief. After holding an evidentiary hearing on one of those grounds, the district court denied the motion. This court granted a certificate of appealability as to four of Olsen's claims: violation of Brady v. Maryland, ineffective assistance of counsel, juror bias, and cumulative error. We have jurisdiction under 28 U.S.C. §§ 1291 and 2255. We affirm.

I. Background

Kenneth Olsen was an employee of Agilent Technologies, Inc., in Liberty Lake, Washington, where he worked as a computer support technician. In August of 2001, a co-worker discovered that a document labeled the Terrorist Encyclopedia, which referenced explosives and other disturbing matters, had been printed on a shared office printer. Agilent security identified Olsen as the person who printed the document. Further inquiry revealed that from his office computer Olsen had extensively browsed internet websites involving poisons and killing, specifically conducting internet searches for phrases like " undetectable death pill."

Agilent security personnel and counsel interviewed Olsen, who offered innocuous explanations for his internet browsing that were not deemed credible. He claimed, for instance, that he searched for information on poison to help his son's Boy Scout troop avoid poisonous berries, and that he viewed anarchist websites involving toxic chemicals because he wanted to learn to make safe household cleaners. Olsen was immediately placed on leave and escorted off the property without being allowed to return to his cubicle.

The next day, the company decided to fire Olsen, and it sent employees to clear out the personal items from his cubicle. Within Olsen's filing cabinets, the employees discovered a wealth of internet printouts and books on poisons and methods of harming people and exacting revenge. They also found test tubes and a wide assortment of other chemistry paraphernalia. Alarmed by their discovery, the employees placed the items into several boxes and took them to the Agilent security team, which in turn contacted the Spokane County Sheriff's Office. A deputy sheriff responded and took custody of the items, and a detective later took them to the Washington State Patrol (" WSP" ) crime laboratory. There, the items were examined by WSP forensic scientist Arnold Melnikoff.

Melnikoff tested the items for the presence of various substances. Among the many items he examined were two test

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tubes containing an oily residue, a metal cup with a small amount of white " cakey" residue stuck inside of it, a glass bottle with similar residue caked on the bottom of the bottle, a bag of beans later identified as castor beans, and several bottles of medicine, including a bottle of Equate-brand allergy capsules. Melnikoff's discovery that the test tubes contained castor oil, and that the beans appeared to be castor beans, alerted him that some of the substances might contain ricin, a highly deadly poison derived from castor beans. Because the WSP lab did not have the ability to test for ricin, Melnikoff contacted the FBI and arranged for it to analyze the test tubes, metal can, glass jar, and beans. Melnikoff then individually sealed each of the items for the FBI.

The FBI in turn sent the test tubes, metal can, and glass jar to the United States Army Medical Research Institute of Infectious Diseases (" USAMRIID" ), which subsequently notified the FBI that each tested positive for ricin. The FBI then took possession of the remaining items from the WSP lab and sent them to USAMRIID. Twelve items from Olsen's cubicle ultimately tested positive for ricin. With respect to the Equate capsules, USAMRIID tested twelve pills for ricin, finding that one had a " high concentration" of the poison while three others also tested positive but " below the level of quantization." Because the capsules had to be liquified for testing, however, it could not be determined whether the ricin was inside the tainted capsules or on their surfaces.

Independent of Melnikoff's contact with FBI laboratory personnel, the Spokane detective handling the case had already consulted the FBI about the matter. When USAMRIID confirmed that the first batch of items tested positive for ricin, the FBI took over the investigation.

Olsen was indicted in July 2002 for knowingly possessing a biological agent, toxin, or delivery system for use as a weapon, in violation of 18 U.S.C. § 175. In April 2003 a second indictment was returned, charging Olsen with possessing a chemical weapon in violation of 18 U.S.C. § 229. After a twelve-day jury trial in July 2003, Olsen was found guilty of both charges. 1

At trial, Olsen did not contest the fact that he produced and possessed ricin, but only that he did so " for use as a weapon," 18 U.S.C. § 175, and that he intended to possess the ricin as a " chemical weapon," 18 U.S.C. § 229. Defense counsel attributed Olsen's actions to " an irresponsible sense of curiosity" about " strange and morbid things." The prosecution, on the other hand, presented evidence that Olsen methodically researched numerous undetectable means of killing someone, investigated not only how to produce poisons but also various means of delivering them to a victim, purified the ricin he produced to enhance its toxicity, performed mathematical calculations to determine the maximum doses of certain common medications for a 150-pound person, and spiked the aforementioned Equate capsule with the ricin he produced.

Arnold Melnikoff did not provide expert testimony at trial, but he testified about his handling of the items recovered from Olsen's cubicle, the tests he performed on them, the reasons he contacted the FBI for assistance, and his packaging of the items for transfer to the FBI.

This court affirmed Olsen's conviction on direct appeal, concluding, among other

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things, that the government provided " copious evidence" of Olsen's intent to use the ricin as a weapon. The court remanded for resentencing, however, due to an error in the application of the Sentencing Guidelines. Olsen, 120 Fed.Appx. at 19. Olsen eventually was sentenced to 121 months of imprisonment and 60 months of supervised release, and was ordered to pay restitution. He appealed the revised sentence, which this court affirmed. See United States v. Olsen, 280 Fed.Appx. 624 (9th Cir.2008).

In 2009, Olsen filed his Section 2255 motion, raising numerous grounds for relief. The district court held an evidentiary hearing on one of these issues, Olsen's claim of juror misconduct. Although the court initially decided to hold an evidentiary hearing on a second issue— a Brady v. Maryland claim premised on the suppression of information about Arnold Melnikoff— the court later determined that no hearing was necessary. The court did allow the parties to file briefs, however, along with exhibits that had been prepared for the evidentiary hearing, including several depositions and affidavits. The district court denied Olsen's Section 2255 motion in part on July 15, 2010, rejecting his juror bias claim. On November 9, 2010, the court rejected the remainder of Olsen's claims and denied the motion in its entirety. The district court declined to issue a certificate of appealability on any issue, but this court granted a certificate with respect to the four issues presented here.

II. Legal Standards

We review de novo the district court's denial of a 28 U.S.C. § 2255 motion. United States v. Aguirre-Ganceda, 592 F.3d 1043, 1045 (9th Cir.2010). The denial of an evidentiary hearing is reviewed for abuse of discretion. Mendoza v. Carey, 449 F.3d 1065, 1068 (9th Cir.2006). A district court's Brady determinations and all other questions of law are reviewed de novo. United States v. Kohring, 637 F.3d 895, 901 (9th Cir.2011).

III. Brady Claim

Olsen contends that the prosecution suppressed information seriously undermining the honesty and professional competence of Arnold Melnikoff, the WSP forensic scientist who first examined the items recovered from his cubicle that later were found to be contaminated with ricin. Had this information been available to Olsen at trial, he maintains, it could...

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