Facts
- Kenneth R. Olsen was investigated after his employer linked disturbing poison- and killing-related internet activity and printouts to him at work, including a “Terrorist Encyclopedia” document and searches such as “undetectable death pill.”
- A search of Olsen’s work area and related investigation uncovered materials about poisons and harming others. Authorities ultimately discovered ricin and ricin-related materials connected to Olsen.
- Olsen admitted he produced ricin but claimed he did so out of morbid curiosity and did not intend to use it “as a weapon,” an element the government had to prove under 18 U.S.C. § 175.
- To prove intent, the prosecution relied heavily on a bottle of allergy pills associated with Olsen. Washington State Police forensic scientist Arnold Melnikoff examined the pills and concluded they might contain ricin.
- Because Melnikoff’s lab was not equipped to test for ricin, he sent the pills to the FBI for testing; the FBI confirmed ricin contamination. The government used the “spiked” pills as tangible proof of weapon-related intent.
- The defense contended the pills were contaminated during forensic handling rather than intentionally spiked by Olsen, pointing to Melnikoff’s handling of the pills after working with ricin-positive items on the same lab bench.
- At the time of Olsen’s trial, Melnikoff was the subject of a Washington State Police internal investigation into misconduct and incompetence in other cases. A report completing that investigation (finished before Olsen’s trial) concluded Melnikoff was incompetent and had committed gross misconduct; it described repeated errors, including contamination issues and unexplained materials in samples.
- Olsen’s trial counsel knew some investigation existed and sought information, but the prosecutor represented that the investigation was ongoing and not relevant. Based on those representations, the trial court barred cross-examination about the investigation, and the jury heard Melnikoff’s testimony without learning of the completed report.
- Olsen was convicted. After the Ninth Circuit affirmed the district court’s denial of Olsen’s 28 U.S.C. § 2255 motion in a published panel opinion, Olsen petitioned for panel rehearing and rehearing en banc.
- The Ninth Circuit issued the published order at 737 F.3d 625 denying rehearing and rehearing en banc. Chief Judge Kozinski filed a dissent from denial of rehearing en banc.
Issues
- Whether the Ninth Circuit should grant rehearing en banc to reconsider the panel’s conclusion that the government’s failure to disclose the completed Washington State Police report about Melnikoff was not material under Brady.
- Whether the panel’s reliance on “overwhelming evidence” to find no Brady materiality warranted en banc review given the government’s use of the allergy-pills evidence to show intent.
- More generally, whether the case presented a question of exceptional importance regarding enforcement of Brady obligations when impeachment evidence concerns a forensic witness tied to potential contamination.
Decision
- The Ninth Circuit denied Olsen’s petition for panel rehearing and denied rehearing en banc, leaving the panel judgment intact.
- Chief Judge Kozinski dissented from the denial of rehearing en banc, stating that the withheld report supplied powerful impeachment of Melnikoff and supported the defense theory that the pills could have been contaminated during lab handling.
- The dissent maintained that, because the government highlighted the pills as concrete proof of intent to weaponize ricin, non-disclosure of the report could reasonably have affected the jury’s evaluation of intent and thus met Brady’s materiality standard.
Legal Principles
- A denial of rehearing en banc leaves the panel opinion in place; the denial order itself does not create new merits holdings.
- Rehearing en banc is generally reserved for cases that threaten uniformity of circuit law or present questions of exceptional importance. See Fed. R. App. P. 35.
- Under Brady v. Maryland, due process is violated when the government suppresses evidence favorable to the accused and the evidence is material to guilt or punishment.
- Impeachment evidence can be “favorable” Brady material when it bears on the reliability or credibility of a government witness, including a forensic analyst whose handling of evidence is disputed.
- Brady materiality asks whether there is a reasonable probability that disclosure would have changed the result; the question is whether nondisclosure undermines confidence in the verdict, considering the record as a whole.
- A dissent from denial of rehearing en banc is not binding precedent, but it may be cited for its reasoning and for identifying disputed applications of governing standards.
Conclusion
United States v. Olsen, 737 F.3d 625 (9th Cir. 2013), is the Ninth Circuit’s published order denying panel rehearing and rehearing en banc after the panel affirmed denial of Olsen’s § 2255 motion; Chief Judge Kozinski dissented, arguing that the prosecution’s failure to disclose a completed state report finding forensic scientist Arnold Melnikoff incompetent and prone to contamination-related errors was material impeachment evidence under Brady because the government relied on Melnikoff-linked ricin testing of allergy pills as strong proof of Olsen’s intent to use ricin as a weapon.