United States v. Olsen

• Decision Date: 10 December 2013
• Docket Number: 10–36064.,Nos. 10–36063,s. 10–36063
• Citation: 737 F.3d 625
• Parties: UNITED STATES of America, Plaintiff–Appellee, v. Kenneth R. OLSEN, Defendant–Appellant. United States of America, Plaintiff–Appellee, v. Kenneth R. Olsen, Defendant–Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

737 F.3d 625

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.

Dec. 10, 2013.

Earl Allan Hicks, Assistant U.S., Stephanie A. Van Marter, Assistant U.S., USSP–Office of the U.S. Attorney, Spokane, WA, for Plaintiff–Appellee.

Peter Offenbecher, Skellenger Bender, P.S. Seattle, WA, for Defendant–Appellant.

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

ORDER

Appellant's Petition for Rehearing is DENIED.

The full court was advised of the petition for rehearing en banc. A judge requested a vote on whether to rehear the matter en banc, and the matter failed to receive a majority of the votes of the nonrecused active judges in favor of en banc consideration. Fed. R.App. P. 35. Appellant's Petition for Rehearing En Banc is DENIED.

Chief Judge KOZINSKI, with whom Judges PREGERSON, REINHARDT, THOMAS and WATFORD join, dissenting from the order denying the petition for rehearing en banc:

There is an epidemic of Brady violations abroad in the land. Only judges can put a stop to it.

I

Kenneth Olsen was convicted by a federal jury of knowingly developing a biological agent for use as a weapon in violation of 18 U.S.C. § 175. United States v. Olsen, 704 F.3d 1172, 1177 (9th Cir.2013). Olsen admitted that he produced ricin, a highly toxic poison, but argued that he didn't intend to use it as a weapon. Instead, he claimed that he was motivated by “an irresponsible sense of curiosity” about “strange and morbid things.” Id.

To show that Olsen acted with the requisite intent, the government produced a bottle of allergy pills found among Olsen's possessions. An analysis by Washington State Police (WSP) forensic scientist Arnold Melnikoff determined that these pills might contain ricin. Because Melnikoff's lab wasn't equipped to test for ricin, Melnikoff sent the pills to the FBI, which confirmed his suspicion. Id. According to the government, these spiked allergy pills were tangible proof that Olsen intended to use the poison as a weapon. Id. at 1185.

Olsen tried to cast doubt on this evidence by arguing that the pills were contaminated by Melnikoff before he sent them to the FBI. There was evidence that Melnikoff “handled and extensively manipulated” the pills. Melnikoff admitted to examining the pills “not by individually removing them from the bottle with forceps, but rather by dumping them onto his laboratory bench, albeit on ‘a sheet of clean lab paper,’ after he had examined other items on the same bench—which included scraping ricin-positive powder from some of these items.” Id. at 1178–79. This was especially important because the ricin test destroyed the pills, so we can't tell whether the poison was inside them or merely on their surface. Id. at 1177. As a result, Melnikoff's competence and veracity were critical to the government's case. Unfortunately for the prosecution, however, there were many reasons to doubt both.

Before joining the WSP, Melnikoff ran the Montana State Crime Laboratory. While there, he conducted a hair sample analysis that resulted in the conviction of Jimmy Ray Bromgard for raping an 8–year–old girl. When a DNA analysis exonerated Bromgard after he had spent fifteen years in prison, officials in Washington and Montana took note. So did the New York Times.¹ Washington launched an investigation into Melnikoff's “misconduct involving courtroom testimony and/or case analysis,” which was expanded after state officials discovered that another innocent Montana inmate had been wrongfully convicted based on flaws in Melnikoff's work. Id. at 1179. A month before Olsen's trial began, a third Montana inmate was exonerated on similar grounds. See Know the Cases: Paul D. Kordonowy, Innocence Project, http:// goo. gl/ r ZJr ME (last visited Nov. 27, 2013).

The findings of the WSP's investigation were compiled into a highly critical report: The panel of experts who prepared it doubted “Melnikoff's diligence and care in the laboratory, his understanding of the scientific principles about which he testified in court, and his credibility on the witness stand.” Olsen, 704 F.3d at 1179–80. The report also contained an extensivereview of Melnikoff's work in Washington, recommending that the WSP redo lab work in 14 out of 100 randomly selected cases due to “the presence of unexplained contaminants in his laboratory, among other findings.” Id. A few quotes from the report illustrate its force:

• [T]here were many mistakes in case documentation, administrative documentation, evidence analysis, data interpretation, and written reports, for example. The casework analysis seemed to be built around speed and shortcuts.... This focus on speed, as expected, manifested itself in acceptance of weak or insufficient data to reach identifications; in documentation mistakes and sloppy work; in reaching conclusions of identification without taking time to isolate the controlled substance ....

• [M]any of the results, collected as they were, were not necessarily sufficient to prove the identity of the questioned substance. Often the data was weak and there was an overreliance of basing identification from mixtures without taking the steps to separate the components. There were often contaminants or unexplained material in the blanks, and these contaminants were often not noted or identified, and no obvious attempt was made to remove them.

• There was a tendency for conclusions to become stronger as the case developed, from notes to written report to testimony.

Melnikoff's employment with the WSP was eventually terminated, and the Washington Court of Appeals affirmed the termination based on a “finding that Melnikoff was incompetent and committed gross misconduct.” Melnikoff v. Washington State Patrol, 142 Wash.App. 1018, 2008 WL 40158, at *11 (2008).

Olsen's lawyer knew that an investigation was underway, but he didn't know its scope. Nor did he know that the WSP's report had been completed and sent to the state decisionmaker two months before Olsen's trial began. Rather than inform defense counsel and the court of these important developments, the Assistant U.S. Attorney prosecuting the case materially understated the scope, status and gravity of the investigation. He claimed that the investigation was “purely administrative” and revolved around a decades-old complaint limited to DNA testing, which wasn't at issue in Olsen's case. Melnikoff's lawyer, Rocco Treppiedi, made an appearance and represented that the WSP was “in the process of investigating” the matter and that, as of that time, there was “absolutely no evidence, no allegation that Mr. Melnikoff has ever done anything inappropriate with respect to anything other than his opinion testimony on the hair sampling.” The Assistant U.S. Attorney added that the WSP investigation was ongoing and represented that “[t]here is nothing further that you should know about.”

Each of these statements was contradicted by the WSP report. But because the Assistant U.S. Attorney failed to disclose the contents of the report to the district judge, the judge relied heavily on the Assistant U.S. Attorney's inaccurate representations in evaluating Olsen's request to cross-examine Melnikoff about the investigation. The judge stated: “[L]et me just say a few words about my understanding of this, and counsel should check me if I am wrong.” He then said that “[t]he only issue here involved at all is whether or not there was some inaccuracy regarding his testimony in Montana about comparing hair samples on rape and homicide cases,” and that “there is nothing in here that I see that indicates that there was any problem at all during the state—his tenure with the State of Washington.” He summarized: “There has been no investigation—or at least no conclusions. They are just bare allegations involving hair sample analyses, the subject of which is not in any way involved in this case.” The district judge surmised that Melnikoff's forced administrative leave during the investigation must have been taken “out of an abundance of precaution.” He then asked, “[W]here am I off the track?”

Nearly everything the district judge understood to be true was false. But the prosecutor did not correct the district judge, who then concluded that it would be “unfair to Mr. Melnikoff to allow counsel to delve into this issue” and “under an analysis of [Federal Rule of Evidence] 403, it just would be improper to go into that.” As a result, the government introduced the spiked allergy pills and the jury heard Melnikoff's testimony, all without ever being informed of these serious doubts about their reliability.

II

Olsen claims that the prosecutor's failure to disclose the WSP investigative report violated Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). Brady holds that a prosecutor violates due process when he (1) suppresses evidence (2) that is favorable to the defendant, when that evidence (3) is material to guilt or innocence. Id. at 87, 83 S.Ct. 1194. This extends to evidence that bears upon the credibility of a government witness. Giglio v. United States, 405 U.S. 150, 153–54, 92 S.Ct. 763, 31 L.Ed.2d 104 (1972). The panel expressly recognizes that the report was favorable to Olsen; nevertheless it dismisses Olsen's complaint on the ground that the WSP report wasn't material.²Olsen, 704 F.3d at 1183–87.

Evidence is material under Brady if it creates “a ‘reasonable probability’ of a different result.” Kyles v. Whitley, 514 U.S. 419, 434, 115 S.Ct. 1555, 131 L.Ed.2d 490 (1995). “A reasonable probability does not mean that the defendant ‘would more likely than not have received a different verdict with the evidence,’ only that the likelihood of a different result is great enough to ‘undermine[ ] confidence in the outcome of the trial.’ ”...