United States v. Kenneth Olsen , 704 F.3d 1172 ( 2013 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA , No. 10-36063
Plaintiff-Appellee,
D.C. Nos.
v. 2:09-cv-00326-WFN
2:03-cr-00084-WFN
KENNETH R. OLSEN ,
Defendant-Appellant.
UNITED STATES OF AMERICA , No. 10-36064
Plaintiff-Appellee,
D.C. Nos.
v. 2:09-cv-00327-WFN
2:02-cr-00184-WFN
KENNETH R. OLSEN ,
Defendant-Appellant. OPINION
Appeal from the United States District Court
for the Eastern District of Washington
Wm. Fremming Nielsen, Senior District Judge, Presiding
Argued and Submitted
August 30, 2012—Seattle, Washington
Filed January 8, 2013
2 UNITED STATES V . OLSEN
Before: Mary M. Schroeder and Ronald M. Gould, Circuit
Judges, and Paul L. Friedman, Senior District Judge.*
Opinion by Judge Friedman
SUMMARY**
Habeas Corpus
The panel affirmed the district court’s denial of a
28 U.S.C. § 2255 motion to vacate a sentence after conviction
of knowingly possessing a biological agent, toxin or delivery
system for use as a weapon.
The panel first affirmed the district court’s denial of
petitioner Olsen’s claim that the prosecution suppressed
information about the incompetence of the forensic scientist
who first examined items that later were found to be
contaminated with ricin. The scientist was fired after an
internal investigation that was not completed until after trial.
The panel explained that, although the information was
favorable to Olsen, he was not entitled to habeas relief
because the information was not material under Brady, given
overwhelming evidence that Olsen intended to use the ricin
as a weapon, and given that Olsen did not contest the fact that
he produced and possessed ricin. The panel also affirmed the
*
The Honorable Paul L. Friedman, Senior District Judge for the U.S.
District Court for the District of Columbia, sitting by designation.
**
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
UNITED STATES V . OLSEN 3
district court’s denial of relief as to Olsen’s claim of
ineffective assistance of counsel in connection with his Brady
claim.
The panel next affirmed the denial of relief as to Olsen’s
claim that the trial was tainted by the presence of a biased
juror who had extensive prior knowledge of the case and had
repeatedly expressed a belief in Olsen’s guilt. The panel
explained that the district court did not clearly err in
determining that the juror was not biased, and that his
inaccurate juror questionnaire responses about lack of
knowledge of the case were due to honest oversights and the
passage of time.
Finally, the panel affirmed the denial of relief as to
Olsen’s claim of cumulative error. The panel held that
Olsen’s claim of an erroneous jury instruction was
procedurally defaulted and without merit. The panel held that
any error in the prosecutor’s alleged use of guilt-assuming
hypothetical instructions was cured by a limiting instruction,
and the panel was not persuaded that the question elicited
answers that affected Olsen’s substantial rights or
significantly damaged his case. The panel also held that the
failure to disclose Brady material, considered alone (above)
or in combination with the remaining alleged error, did not
render the trial fundamentally unfair or violate due process.
COUNSEL
Peter Offenbecher (argued), Pamela S. Tonglao, Skellenger
Bender, P.S., Seattle, Washington, and Robert C. Owen,
Owen & Rountree, L.L.P., Chicago, Illinois, for Defendant-
Appellant.
4 UNITED STATES V . OLSEN
Michael C. Ormsby, United States Attorney; Stephanie Van
Marter (argued) and Earl A. Hicks, Assistant United States
Attorneys, United States Attorney’s Office, Spokane,
Washington, for Plaintiff-Appellee.
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 F. App’x 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
UNITED STATES V . OLSEN 5
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 tubes containing an oily residue, a metal cup with a small
amount of white “cakey” residue stuck inside of it, a glass
6 UNITED STATES V . OLSEN
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.
UNITED STATES V . OLSEN 7
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.
1
The district court conditionally dismissed the chemical weapon count
prior to sentencing, by agreement of the parties based on a multiplicity
issue. Olsen, 120 F. App’x at 19.
8 UNITED STATES V . OLSEN
This court affirmed Olsen’s conviction on direct appeal,
concluding, among other 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 F. App’x 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 F. App’x 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
UNITED STATES V . OLSEN 9
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 have been used to rebut the
government’s argument that Olsen spiked the Equate pill with
ricin: in light of Melnikoff’s record of laboratory
incompetence, Olsen would have had a basis for arguing that,
instead, Melnikoff inadvertently contaminated the pill and did
not testify truthfully about the laboratory procedures he
followed when examining Olsen’s items. In Olsen’s view,
the contaminated Equate capsule was critical to the
government’s case because it offered powerful evidence that
Olsen possessed the ricin to harm someone, as required for
conviction under 18 U.S.C. § 175, rather than merely out of
a morbid fascination with poisons.
Although Melnikoff did not perform the tests that
identified Olsen’s possessions as containing ricin (nor testify
as an expert at trial), he handled and extensively manipulated
the items before they were transferred to FBI custody. An
expert affidavit supporting Olsen’s Section 2255 motion
concludes, based on the evidence presented at trial, that it is
“highly probable” that Melnikoff contaminated the Equate
10 UNITED STATES V . OLSEN
capsule with ricin after handling the other, ricin-positive
items. Melnikoff testified that he examined the Equate
capsules 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.
Melnikoff also does not appear to have changed gloves
between handling each item that he examined, although his
testimony was equivocal on this point.
A. Background
Before Melnikoff joined the WSP in 1989, he was the
head of the Montana State Crime Laboratory, where his work
included conducting hair sample analyses. A defendant
named Jimmy Ray Bromgard, who was convicted in Montana
of rape based largely on Melnikoff’s hair sample testimony,
was later exonerated by DNA testing and released in 2002.
An Innocence Project advocate who had worked on the
Bromgard matter wrote to the Washington State Attorney
General about Melnikoff’s expert testimony in that case and
urged a review of his subsequent work in Washington.
The WSP responded by launching an internal
investigation of Melnikoff in October 2002 that included “a
review of current work performance.” A letter advised
Melnikoff of the allegations against him: that while employed
in Washington, he “may have engaged in misconduct
involving courtroom testimony and/or case analysis” and that
he “may have misrepresented himself during the original
employment process when he applied for a position with the
Washington State Patrol.” Melnikoff was placed on
administrative reassignment during the investigation. In
UNITED STATES V . OLSEN 11
January 2003 two additional charges were added, stemming
from Melnikoff’s expert testimony in a different Montana
case where the defendant later was exonerated. These
charges accused Melnikoff of offering statistical conclusions
regarding hair sample identifications that were not consistent
with scientific principles and of substantially overstating the
number of cases in which he had conducted hair analyses.
Documents generated during a WSP internal investigation
are not available to the public or even to the employee being
investigated until the WSP’s administrative decisionmaker
issues his or her preliminary findings, in the form of an
“Administrative Insight.” The Administrative Insight in the
Melnikoff investigation was issued on August 4, 2003, after
the conclusion of Olsen’s trial. By May 2003, however —
nearly two months before the trial began — the investigative
file for Melnikoff had already been completed and provided
to the decisionmaker for review. This investigative file
contained more than unsubstantiated allegations concerning
the quality of Melnikoff’s laboratory work and his reliability
as a witness. Instead, the investigative file contained
comprehensive factual findings that investigators reached
after scrutinizing Melnikoff’s laboratory work and his
testimony as an expert witness in both Montana and
Washington. Among other items, this file contained three
separate evaluations of Melnikoff’s work in Montana and
Washington, solicited for the investigation and conducted by
peers and other experts in forensic laboratory analysis. These
evaluations comprised an assessment of Melnikoff’s work in
the Bromgard case by a panel of experts, an assessment of
Melnikoff’s work in another Montana case by a forensic
scientist, and, most notably, an assessment of Melnikoff’s
work in 100 recent Washington cases, along with his
courtroom testimony in twelve Washington cases, by a panel
12 UNITED STATES V . OLSEN
of Washington forensic chemists. This last assessment — the
peer review of Melnikoff’s work in Washington — is referred
to by the parties as the “Johnston Report”.
The conclusions of these expert assessments were highly
critical, calling into question 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. The Johnston Report, which reviewed
Melnikoff’s Washington casework, concluded that his
laboratory methods “seemed to be built around speed and
shortcuts.” The panel noted the presence of unexplained
contaminants in his laboratory, among other findings.
The lead prosecutor in Olsen’s trial, Assistant U.S.
Attorney Earl Hicks, was aware of the investigation into
Melnikoff. In April of 2003, Hicks contacted the WSP
laboratory director to inquire about the status of the
investigation and to request any Brady material that might
exist. Hicks was referred to Elizabeth Brown, an Assistant
Attorney General for the State of Washington and legal
counsel for the WSP. Although Hicks attempted to reach
Brown, and the two repeatedly left voicemail messages for
each other, they never actually spoke or communicated in
writing about Hicks’s Brady inquiry.
Because Hicks never spoke with AAG Brown, it appears
that he never learned that an investigative file had been
completed for Melnikoff in May 2003 nor anything about its
contents. Olsen’s defense counsel never received the file or
any of the documents it contained, including the critical
assessments of Melnikoff’s laboratory work — counsel had
possession only of the original charging documents laying out
UNITED STATES V . OLSEN 13
the allegations against Melnikoff and informing him that an
investigation was being conducted.
During a pretrial hearing in late June 2003, AUSA Hicks
informed the district court about the internal investigation
into Melnikoff and acknowledged that he needed to “follow
up and contact the State of Washington again.” But Hicks
emphasized that no findings of any wrongdoing had yet been
made. Hicks also characterized the WSP investigation —
inaccurately, as it turns out — as pertaining solely to
Melnikoff’s work conducting hair analyses in Montana
during the 1980s and early 1990s. Olsen’s counsel explained
that she had been “requesting materials about Mr. Melnikoff
for quite some number of months now” based on her
awareness of the investigation, his placement on
administrative reassignment, and the fact that “his cases were
being peer reviewed.” Her concern over the internal
investigation material, she explained, arose from her
knowledge that Melnikoff did some “testing and
manipulation” of Olsen’s items and the possibility, in light of
the allegations against him, of “cross contamination” if his
handling of the evidence was not “appropriate and done with
scientific standards.”
The matter was revisited during trial on July 3, 2003, just
before Melnikoff testified. By then the prosecutor had
provided those documents within his possession to both the
court and defense counsel, but these documents did not
include Melnikoff’s investigative file or any of its contents
such as the Johnston Report. The district court ruled that
Melnikoff could not be cross-examined about the WSP
investigation, based in part on the court’s erroneous
understanding that “[t]he only issue here involved at all is
whether or not there was some inaccuracy regarding his
14 UNITED STATES V . OLSEN
testimony in Montana about comparing hair samples on rape
and homicide cases” and because “there is nothing in here
that I see that indicates that there was any problem at all
during . . . his tenure with the state of Washington.” The
court stated that because no findings had yet been made by
the WSP decisionmaker, and because the investigation related
solely to hair sample analysis in Montana, it would be “unfair
to Mr. Melnikoff to allow counsel to delve into this issue,
which isn’t at all relevant, and [does not] appear to in any
way involve anything, as I understand it, his participation in
this case would involve.” “I know of no indication,” the
court reiterated, “that he acted inappropriately while with the
State of Washington. There is no indication that he . . . didn’t
operate properly under lab techniques.”
Melnikoff subsequently testified before the jury about his
handling and examination of the items recovered from
Olsen’s cubicle. Defense counsel was permitted to elicit from
Melnikoff only the fact that during his career complaints had
been filed against him. On redirect, the prosecutor
established that these complaints had been two or three in
number. The prosecutor then asked Melnikoff if he had ever
been disciplined or “ever been found to have done anything
incorrectly,” to which Melnikoff answered “no.”2
On August 4, 2003, after Olsen had been found guilty, the
WSP decisionmaker issued his Administrative Insight,
finding all the charges against Melnikoff to be proven. After
Melnikoff was allowed to respond to the preliminary
findings, they were made final, and Melnikoff was fired.
2
Later in the trial, Melnikoff was called back to the stand to testify that
a lawsuit against him and the state of Montana by a former prisoner had
just settled, with no admission of any wrongdoing.
UNITED STATES V . OLSEN 15
These decisions were upheld on various levels of
administrative and judicial review.
B. Brady Standards
“The three elements of a claim for a Brady violation are
that ‘[t]he evidence at issue must be favorable to the accused,
either because it is exculpatory, or because it is impeaching;
that evidence must have been suppressed by the State, either
willfully or inadvertently; and prejudice must have ensued.’”
Gentry v. Sinclair, 693 F.3d 867, 887 (9th Cir. 2012) (quoting
Strickler v. Greene, 527 U.S. 263, 281–82 (1999)). We find
that the first element, favorability, has been satisfied in this
case. We have no need to address the more difficult question
presented here by the second element, suppression, because
we conclude that the third element, materiality, has not been
satisfied and that Olsen therefore is not entitled to relief.
1. Favorability
Evidence is favorable to the accused under Brady if it has
either exculpatory or impeachment value. Gonzalez v. Wong,
667 F.3d 965, 981 (9th Cir. 2011) (citing United States v.
Bagley, 473 U.S. 667, 676 (1985)). The prosecution must
disclose materials that are potentially exculpatory or
impeaching. See Schad v. Ryan, 671 F.3d 708, 715 (9th Cir.
2011); Hovey v. Ayers, 458 F.3d 892, 918 (9th Cir. 2006).
The contents of the WSP internal investigation file clearly
were favorable to Olsen. The file contained three
independent assessments completed by different experts and
peers calling into question Melnikoff’s care in the laboratory
and his fidelity on the witness stand. The Johnston Report,
which reviews Melnikoff’s lab work in 100 recent
16 UNITED STATES V . OLSEN
Washington cases, criticizes his reliance on “speed and
shortcuts,” and while it primarily focuses on problematic
identifications of chemical substances, it also cites
unaddressed contamination of laboratory materials, finding in
one instance that “a defendant could have been prejudiced by
an inaccurate test,” and in another that Melnikoff’s notes
were contaminated with “reddish brown powder . . . probably
from the fingers.” As evidence that Melnikoff’s lab work
was characterized by sloppiness and haste, the report could
have supported a defense theory that Melnikoff inadvertently
contaminated the Equate capsule with ricin, undermining one
piece of evidence of Olsen’s harmful intent.
The Johnston Report also examined Melnikoff’s
testimony in twelve Washington cases, noting “small
misstatements made in a number of testimonies,” “a tendency
for conclusions to become stronger as the case developed,
from notes to written report to testimony,” and testimony that
was either unsupported by the data or outside Melnikoff’s
field of expertise. Although these findings largely bear on
Melnikoff’s willingness to offer unwarranted scientific
conclusions, they also speak to his truthfulness on a more
general level, by suggesting a proclivity to shade his
testimony in favor of the government’s case. As such, they
could have been used to question the accuracy of his account
about the care with which he examined Olsen’s items and
thus call into question his credibility as a witness. See
Gentry, 693 F.3d at 888 (evidence showing that the lead
detective “was fired from his previous job for misconduct and
that he had lied to obtain search warrants in other cases” was
favorable “as it could have been used to impeach the
credibility of [the detective] for truthfulness”) (citing Bagley,
473 U.S. at 676); Carriger v. Stewart, 132 F.3d 463, 479–80
(9th Cir. 1997) (en banc) (evidence from corrections file of
UNITED STATES V . OLSEN 17
prosecution witness bearing adversely on his credibility
should have been disclosed under Brady).
Echoing the district court, the government maintains that
the contents of Melnikoff’s investigative file, including the
Johnston Report and the other peer evaluations of his work,
were not favorable to Olsen because the WSP decisionmaker
had yet to make any findings. That proposition, for which the
government offers no support, is at odds with the case law in
this circuit, which repeatedly has held materials from ongoing
investigations to be favorable under Brady. See, e.g.,
Kohring, 637 F.3d at 903, 905 (e-mails, memoranda, police
reports, handwritten notes, and file regarding ongoing
investigation into government witness); United States v.
Price, 566 F.3d 900, 903 (9th Cir. 2009) (information
respecting witness’s arrests, not convictions). Indeed,
information bearing adversely on the credibility of a
prosecution witness is favorable under Brady regardless of
whether it was part of any investigation at all. See, e.g.,
Gonzalez, 667 F.3d at 976, 981 (reports prepared by prison
psychologists undermining credibility of government
witness); United States v. Alvarez, 358 F.3d 1194, 1206–07
(9th Cir. 2004) (exculpatory and impeachment material from
probation officer’s files). The fact that the materials at issue
here were generated because of an internal investigation is
irrelevant. In the government’s view, apparently, no matter
what the investigative file contained — even perhaps a sworn
affidavit by Melnikoff himself admitting that he contaminated
Olsen’s items with ricin — this evidence would not be
favorable under Brady until the administrative decisionmaker
concluded that such conduct violated WSP regulations. This
position is untenable under Brady, and the government’s
tenacious adherence to it is mystifying.
18 UNITED STATES V . OLSEN
2. Suppression
In order for a Brady violation to have occurred, the
favorable evidence at issue must have been suppressed by the
prosecution, Price, 566 F.3d at 907 (citing Strickler, 527 U.S.
at 281), and suppression may be either intentional or
inadvertent. Strickler, 527 U.S. at 288; Schad, 671 F.3d at
715. An “innocent” failure to disclose favorable evidence
constitutes suppression even where there is no allegation that
the prosecutor acted “willfully, maliciously, or in anything
but good faith” — “sins of omission are equally within
Brady’s scope.” Price, 566 F.3d at 907–08 (citing Benn v.
Lambert, 283 F.3d 1040, 1053 (9th Cir. 2002)); accord
United States v. Pelisamen, 641 F.3d 399, 408 (9th Cir. 2011)
(citing Strickler, 527 U.S. at 281–82). “Brady has no good
faith or inadvertence defense.” Gantt v. Roe, 389 F.3d 908,
912 (9th Cir. 2004).
This case presents the complex question of whether
suppression occurs under Brady and Kyles v. Whitley,
514 U.S. 419 (1995), when a federal prosecutor does not
obtain or reveal information favorable to the defendant that
is contained in a state internal investigation file. We need not
reach that issue here, however, because we conclude that the
information contained in Melnikoff’s WSP internal
investigation file is not material under Brady.
3. Materiality
Even if evidence favorable to the defendant has been
suppressed or not disclosed by the prosecution, there is no
true Brady violation unless that information is material.
Strickler, 527 U.S. at 281–82. The Supreme Court and courts
of appeals have found evidence to be “material” when “there
UNITED STATES V . OLSEN 19
is a reasonable probability that, had the evidence been
disclosed to the defense, the result of the proceeding would
have been different.” Maxwell v. Roe, 628 F.3d 486, 509 (9th
Cir. 2010) (quoting Strickler, 527 U.S. at 280). “A
reasonable probability is one that is sufficient to undermine
confidence in the outcome of the trial.” Id. (citing Kyles,
514 U.S. at 434). “The question is not whether the defendant
would more likely than not have received a different verdict
with the evidence, but whether in its absence he received a
fair trial, understood as a trial resulting in a verdict worthy of
confidence.” Strickler, 527 U.S. at 289–90 (quoting Kyles,
514 U.S. at 434); see Hovey, 458 F.3d at 916. Reversal of a
conviction or sentence is required only upon a “showing that
the favorable evidence could reasonably be taken to put the
whole case in such a different light as to undermine
confidence in the verdict.” Williams v. Ryan, 623 F.3d 1258,
1274 (9th Cir. 2010) (quoting Kyles, 514 U.S. at 435). This
necessarily is a retrospective test, evaluating the strength of
the evidence after trial has concluded.3
3
A trial prosecutor’s speculative prediction about the likely materiality
of favorable evidence, however, should not limit the disclosure of such
evidence, because it is just too difficult to analyze before trial whether
particular evidence ultimately will prove to be “material” after trial. Thus,
“there is a significant practical difference between the pretrial decision of
the prosecutor and the post-trial decision of the judge.” United States v.
Agurs, 427 U.S. 97, 108 (1976). As this court has noted, some trial courts
therefore have concluded that the retrospective definition of materiality is
appropriate only in the context of appellate review, and that trial
prosecutors must disclose favorable information without attempting to
predict whether its disclosure might affect the outcome of the trial. See
Price, 566 F.3d at 913 n.14 (noting favorably “the thoughtful analysis set
forth by two district courts in this circuit” on the matter and citing United
States v. Acosta, 357 F. Supp. 2d 1228, 1239–40 (D. Nev. 2005) (“[T]he
‘materiality’ standard usually associated with Brady for pretrial discovery
purposes . . . should not be applied to pretrial discovery of exculpatory
20 UNITED STATES V . OLSEN
To be considered material under Brady, the undisclosed,
favorable evidence must either be admissible exculpatory
evidence or be impeachment evidence, which “need not have
been independently admissible to have been material.”
Carriger, 132 F.3d at 481; see also Price, 566 F.3d at911–12. Impeachment evidence is material “because ‘if
disclosed and used effectively, it may make the difference
between conviction and acquittal.’” Carriger, 132 F.3d at
481 (quoting Bagley, 473 U.S. at 676). “Evidence can be
‘used to impeach’ a witness even if the evidence is not itself
admissible, even to impeach” — a written statement, for
instance, that contradicts a witness’s testimony but is
inadmissible as hearsay could still be used as a prior
inconsistent statement to cross-examine the witness. Paradis
v. Arave, 240 F.3d 1169, 1179 (9th Cir. 2001); Kohring,
637 F.3d at 904. Inadmissible evidence that could have led
to the discovery of admissible evidence also may qualify as
material under Brady, although this circuit has not
conclusively resolved the issue. Price, 566 F.3d at 911–12;
Paradis, 240 F.3d at 1178–79.
As noted, the materials contained in Melnikoff’s WSP
internal investigation file could have been employed by
materials.”), and United States v. Sudikoff, 36 F. Supp. 2d 1196 (C.D. Cal.
1990) (The standard of whether evidence would have changed the
outcome “is only appropriate, and thus applicable, in the context of
appellate review. . . . [I]t obviously cannot be applied by a trial court
facing a pretrial discovery request.”)). See also United States v. Safavian,
233 F.R.D. 12, 16 (D.D.C. 2005) (“The prosecutor cannot be permitted to
look at the case pretrial through the end of the telescope an appellate court
would use post-trial. Thus, the government must always produce any
potentially exculpatory or otherwise favorable evidence without regard to
how the withholding of such evidence might be viewed — with the benefit
of hindsight — as affecting the outcome of the trial.”).
UNITED STATES V . OLSEN 21
Olsen’s defense in at least two ways. First, defense counsel
could have cross-examined Melnikoff about the reports
contained in the file that indicate his lack of total candor on
the witness stand and a tendency to shade his testimony in a
manner buttressing the strength of the government’s case.
See Kohring, 637 F.3d at 905–07 (concluding that police
department files documenting investigation into government
witness for offenses calling into question his honesty could
have been used to impeach witness). This line of inquiry
could have been employed to undercut Melnikoff’s account
of the care with which he handled Olsen’s possessions and
hence his credibility.4 Second, the Johnston Report — which
details Melnikoff’s slipshod work in the laboratory — could
have been used to further advance the theory that it was
Melnikoff who contaminated the Equate capsule with ricin.
The defense could have pursued this theory by questioning
Melnikoff about the report.
The question under Brady is whether there is a reasonable
probability that, had the Melnikoff information been
disclosed, it would have led to a different result. Maxwell,
628 F.3d at 509. “The mere possibility that an item of
4
Rule 608(b) of the Federal Rules of Evidence authorizes courts to
permit inquiry into specific instances of conduct during cross-examination
if they are probative of the character for untruthfulness of the witness —
subject, of course, to the balancing analysis of Rule 403. Had Olsen’s
attorneys cross-examined Melnikoff about the truthfulness of his
testimony in prior cases, he either would have acknowledged or denied
prior questionable conduct, and counsel would have been stuck with his
answers and not allowed to pursue further inquiry. See United States v.
Jackson, 882 F.2d 1444, 1452 (9th Cir. 1989). Nevertheless, the jury
would have been able to assess his credibility when confronted and “to
observe his demeanor when he answered the questions, which might have
been telling.” Kohring, 637 F.3d at 905 & n.4.
22 UNITED STATES V . OLSEN
undisclosed information might have helped the defense, or
might have affected the outcome of the trial, does not
establish ‘materiality’ in the constitutional sense.” Barker v.
Fleming, 423 F.3d 1085, 1099 (9th Cir. 2005) (quoting
United States v. Croft, 124 F.3d 1109, 1124 (9th Cir. 1997)).
“For purposes of determining prejudice,” therefore, “the
withheld evidence must be analyzed ‘in the context of the
entire record.’” Benn, 283 F.3d at 1053 (quoting Agurs,
427 U.S. at 112).5
Upon a careful review of the record, we conclude that
there is no reasonable probability that the verdict would have
been different if the favorable evidence had been disclosed.
Even if Melnikoff’s credibility as a witness had been totally
destroyed, we are confident beyond doubt that the jury would
have found Olsen guilty, based on the overwhelming
evidence presented by the government that he intended to use
the ricin he possessed as a weapon. Despite the government’s
failure to obtain and disclose Melnikoff’s internal
investigation file, therefore, Olsen received “a trial resulting
in a verdict worthy of confidence.” Gentry, 693 F.3d at 888
(quoting Kyles, 514 U.S. at 434).
Because Olsen did not contend that he did not produce or
possess ricin, the trial focused largely on the issue of intent:
did he intend to possess the ricin as a chemical weapon or to
use the ricin as a weapon? The contaminated Equate pill was
one piece of evidence supporting Olsen’s intent, and to be
sure, the prosecution highlighted this piece of evidence —
5
“The terms ‘material’ and ‘prejudicial’ are used interchangeably in
Brady cases. Evidence is not ‘material’ unless it is ‘prejudicial,’ and not
‘prejudicial’ unless it is ‘material.’ Thus, for Brady purposes, the two
terms have come to have the same meaning.” Benn, 283 F.3d at 1053 n.9.
UNITED STATES V . OLSEN 23
mentioning the capsule in its opening statement, devoting
attention to it at various points during its case-in-chief, and
emphasizing it during closing argument. Far from being the
“lynchpin” of the prosecution’s case, however, as Olsen
contends, the Equate pill was, as the government avers,
“simply one more layer in an already overwhelming case
against the Defendant.” Over the course of the twelve-day
trial, the prosecution supplied devastating evidence about
Olsen’s extensive research into poisons and killing indicating
that these efforts were not prompted by mere curiosity but by
a methodical effort to find an undetectable means of ending
a victim’s life.
The prosecution demonstrated not only that Olsen
produced a substantial amount of ricin — enough to kill at
least 75 people — but more tellingly that Olsen carried out
extra steps to purify the ricin that he produced, enhancing its
toxicity and deadliness. While ricin exists at 3 percent to 5
percent purity in its initial state, Olsen refined the ricin in his
test tubes to between 18 and 19 percent purity.
The bulk of the government’s case, however, rested on
the evidence of intent amply provided by Olsen’s internet
research over the course of a year. This evidence simply did
not comport with the defense theory at trial of an individual
motivated only by curiosity about poisons. Instead, it showed
that Olsen carried out a prolonged investigation into a variety
of means to inflict harm on someone, with an ever-present
focus on avoiding detection, during which he viewed
materials that discussed not just how to create or obtain
poisons but how to administer them to a victim. Ricin was
but one of the deadly substances that Olsen investigated
during the course of this research, although it was the one on
which he focused the most attention, and ingestion of poison
24 UNITED STATES V . OLSEN
was only one of the methods of delivery discussed in the
resources he accumulated. The government’s case did not in
any way hinge on the theory that Olsen actually planned to
use the spiked Equate capsule, and the capsule was just one
indication of intent to which the prosecution pointed.
Government investigators examined over 20,000 pages of
internet proxy logs from Olsen’s computer — records of the
internet websites that he viewed from the computer. A
lengthy summary of those records, exceeding 200 pages, was
introduced in evidence at trial and was discussed in detail
during the testimony of FBI agents. This summary was
combined with an illustrative timeline of Olsen’s internet
research, allowing the prosecution to show the evolution of
his activity over the course of months.
From this evidence, the jury learned that Olsen had
repeatedly viewed and in some instances printed out or
purchased works with titles such as “How to Kill,” “Silent
Death,” “Getting Even,” and the “Poisoner’s Handbook,”
along with countless websites offering detailed instructions
on both the production and delivery of poisons. The
prosecution could not, of course, directly prove why Olsen
consulted these materials or on what specific information in
each source he focused. The proxy logs, however, recorded
not only the websites that Olsen viewed but the actual words
that he typed into internet search engines to locate materials
of interest to him. As the prosecution characterized this
evidence in closing argument: “What is unique about the
evidence in this case is we have captured a thought process.
We have captured his own words.” The proxy logs revealed,
for instance, that at various times Olsen performed searches
for the phrases “silent killers,” “death by poison,” “tasteless
poison,” “hidden poison,” “undetectable poisons,”
UNITED STATES V . OLSEN 25
“untraceable poisons,” “painless death,” “untraceable death
pill,” “suicide pill overdose,” “how to get ingredients for
suicide pill,” “deadly sleeping pills,” and “common
ingredients for death by sleep.”
Ricin was but one of the deadly substances that Olsen
investigated during the course of his wide-ranging and
nefarious explorations. For instance, he also acquired
information about nicotine, which in its pure form is highly
poisonous. Along with viewing articles on nicotine
poisoning, Olsen performed searches for “acquiring liquid
nicotine,” “making liquid nicotine,” “distilling nicotine,”
“how do you extract nicotine from tobacco,” “nicotine
isolation,” “how do you get pure nicotine,” and “pure nicotine
buy.” He also viewed websites discussing lethal doses of
nicotine and nicotine poisoning symptoms. A pervasive
theme in his internet searches, however, was lack of
detection, and the jury also learned that ricin is considered an
undetectable poison whose deadly symptoms mimic the
ailments of pneumonia and flu.
The prosecution also presented evidence from Olsen’s
internet browsing history showing that he viewed and
searched for websites dealing specifically with the delivery of
poison to a victim. Describing this evidence, the district
court observed that Olsen “did much research on poisons,
how to administer them, in what doses, and to be undetected.”
The prosecution did not focus solely on Olsen’s interest in the
delivery of ricin by ingestion and certainly not on the spiking
of pills. To the contrary, the government repeatedly
emphasized that ricin can be delivered to a victim through
inhalation, injection by syringe, or ingestion. The
prosecution showed that needles and syringes were found in
Olsen’s cubicle along with his ricin-related items, and that
26 UNITED STATES V . OLSEN
some of the ricin in his cubicle was in powder form, which an
FBI agent testified could be inhaled or “sprinkled anywhere”
for purposes of ingestion. Olsen’s interest in such methods
of delivery was further demonstrated by the fact that he
conducted searches for phrases like “inhaling ricin,”
“atomizing a powder,” and “spraying a powder.”
The jury heard an entire line of testimony about Olsen’s
extensive research into “knock out drugs,” such as the so-
called date-rape drug, and about how ricin could be
administered without detection by first rendering the victim
unconscious with such a drug and then injecting the victim or
causing him or her to inhale the ricin. As the jury learned,
Olsen also researched the maximum doses of certain common
antihistamine and sleeping-pill drugs — including Equate —
which if taken in excessive amounts can render a person
unconscious. The government introduced notes in Olsen’s
handwriting in which he listed the maximum doses, in
milligrams, for four of these medications. Perhaps most
incriminating of all, within these same handwritten notes
Olsen mathematically calculated the weight in kilograms of
a 150-pound person. The jury learned that Olsen’s wife, the
woman with whom he was having an affair, and his former
supervisor all weighed around 150 pounds.
All of this evidence was prominently highlighted by the
prosecution as evidence of intent during trial and closing
argument. The record simply does not support Olsen’s claim
that the presence of ricin in the Equate capsule was “pivotal”
to the prosecution’s case. The contaminated pill was but one
piece of evidence put before the jury for which no innocent
explanation was plausible. It is likely for this reason that the
district court judge who presided over the trial stated in the
course of rejecting Olsen’s Brady claim that the Equate
UNITED STATES V . OLSEN 27
capsule “was not that significant to the outcome of the trial,”
and that “even if [the] allegation of cross-contamination by
Mr. Melnikoff was conclusively proven as true, it would not
have affected the outcome of the trial.”6
Had the prosecution obtained and disclosed the evidence
from Melnikoff’s WSP internal investigation file, the most
that Olsen’s defense counsel could have accomplished with
it would have been to raise a question about whether Olsen or
Melnikoff contaminated the Equate pill with ricin and how
credible Melnikoff was in describing the care he took in the
laboratory. Viewing this evidence “in the context of the
entire record,” Benn, 283 F.3d at 1053 (quoting Agurs,
427 U.S. at 112), we find no reasonable probability that, had
the evidence been disclosed, the result of the proceeding
would have been different. See Maxwell, 628 F.3d at 509.
IV. Ineffective Assistance of Counsel
Olsen contends that although his trial attorneys requested
Brady material about Melnikoff from the prosecutor, they
rendered ineffective assistance under Strickland v.
Washington, 466 U.S. 668 (1984), by not attempting to obtain
6
Although Olsen directs our attention to the places in the record where
the prosecution focused on the Equate pill, examination of these passages
reveals, nearly without fail, that even in these very instances the
prosecution’s case focused equally on other methods of delivering ricin.
To take just one example, Olsen quotes a passage from the direct
examination of an FBI agent in which the prosecutor asks: “Did you find
any physical evidence consistent with those delivery methods you came
to learn about?” Olsen quotes the beginning of the agent’s answer (“The
Equate tabs. . . .”), but fails to note that the agent’s response continued:
“Also, that ricin was found in a powder form in the metal bowl, and also,
that we found needles and syringes since ricin can also be injected.”
28 UNITED STATES V . OLSEN
such material independently, through Washington’s public
disclosure laws, by seeking a subpoena from the district
court, or through other means.
In our view, the existing record strongly suggests that
none of the alternative means of obtaining Melnikoff’s
internal investigation file would have been successful, and
that his trial counsel did nothing wrong. We need not resolve
this matter, however, because “Brady materiality and
Strickland prejudice are the same.” Gentry, 693 F.3d at 889
(citing Bagley, 473 U.S. at 682); see United States v. Spawr
Optical Research, Inc., 864 F.2d 1467, 1472 n.6 (9th Cir.
1988) (“The Strickland standard for prejudice has been
considered to impose virtually the same burden on the
defense as the standard for materiality in Brady claims.”). If
the withheld information does not constitute a Brady violation
for lack of materiality, its absence likewise will not support
an ineffective assistance of counsel claim. Gentry, 693 F.3d
at 889. Because we have concluded that Olsen’s lack of
access to the impeachment evidence about Melnikoff had no
material effect on his defense under Brady, “that analysis is
dispositive of the prejudice prong of an ineffective assistance
claim based on the same evidence.” Id. Olsen’s claim of
ineffective assistance therefore cannot succeed.
V. Juror Bias
Olsen’s next claim is that his trial was tainted by the
presence of a biased juror who, unbeknownst to the parties
and the district court, had extensive prior knowledge about
the case and had repeatedly expressed a belief in Olsen’s
guilt. Olsen maintains that this juror secured a spot on the
jury by concealing his prior knowledge during voir dire and
by lying about his own background in his juror questionnaire.
UNITED STATES V . OLSEN 29
The district court held a two-day evidentiary hearing on this
claim, after which it concluded that the juror was not biased
against Olsen and that his inaccurate juror questionnaire
responses were the result of honest oversights. We affirm the
district court’s findings and conclusions.
A. Background
One of the jurors in Olsen’s trial was a man named
Kenneth Leavitt. During voir dire, Leavitt did not speak up
when the prospective jurors were asked whether anyone had
“any particular exposure or knowledge” about the case.
Defense counsel later asked those prospective jurors who had
indicated having knowledge of the case to re-identify
themselves and elaborate on their knowledge. Although
Leavitt had not responded earlier, he then identified himself
and explained: “Just months and months ago, a little news
blurb on one of those news break shows, something about
ricin or whatever.” Leavitt did not respond, however, when
defense counsel inquired of the individuals who had heard
about the case: “Have you talked about this case just in
general terms with other people simply because it was an item
of news interest? Is there anyone here who has done that?”
Nor did he respond when counsel asked of the same group
whether any of them had formed any opinions about the case.
When Leavitt later was questioned individually by the trial
judge, he said he knew of no reason why he could not be
impartial.
Leavitt previously was a business associate of an
individual named Kevin Ryan, whose wife Jeanette Ryan was
a friendly acquaintance of Olsen. Olsen worked as a massage
therapist in addition to his computer-related employment, and
Jeanette Ryan had gone to him for massage therapy for
30 UNITED STATES V . OLSEN
several years. Ms. Ryan attended portions of Olsen’s trial,
which was held near her office, to show support for him and
his family. On the first day that she attended the trial, she
observed Leavitt — whom she had met a few times because
of his work with her husband — in the jury box. That night,
she mentioned this observation to her husband. Mr. Ryan, as
he later testified at the evidentiary hearing, was “absolutely
flabbergasted” and “sick to [his] stomach” by the revelation
because, he testified, he and Leavitt had had multiple
conversations about the Olsen case when it was in the news,
during which Leavitt expressed an unwavering belief in
Olsen’s guilt and demonstrated familiarity with the evidence
against him.
The Ryans’ concerns about juror Leavitt were brought to
the attention of Olsen’s wife and then his counsel, although
it appears that the full extent of Mr. Ryan’s allegations
regarding his conversations with Leavitt became known to
counsel only after sentencing.
B. Discussion
“The Sixth Amendment guarantees criminal defendants
a verdict by an impartial jury.” United States v. Martinez-
Martinez, 369 F.3d 1076, 1081 (9th Cir. 2004). “The bias or
prejudice of even a single juror is enough to violate that
guarantee.” United States v. Gonzalez, 214 F.3d 1109, 1111
(9th Cir. 2000). “Accordingly, ‘[t]he presence of a biased
juror cannot be harmless; the error requires a new trial
without a showing of actual prejudice.’” Id. (quoting Dyer v.
Calderon, 151 F.3d 970, 973 n.2 (9th Cir. 1998) (en banc)).
This court recognizes three forms of juror bias: (1) “actual
bias, which stems from a pre-set disposition not to decide an
UNITED STATES V . OLSEN 31
issue impartially”; (2) “implied (or presumptive) bias, which
may exist in exceptional circumstances where, for example,
a prospective juror has a relationship to the crime itself or to
someone involved in a trial, or has repeatedly lied about a
material fact to get on the jury”; and (3) “so-called
McDonough-style bias, which turns on the truthfulness of a
juror’s responses on voir dire” where a truthful response
“would have provided a valid basis for a challenge for cause.”
Fields v. Brown, 503 F.3d 755, 766–67 (9th Cir. 2007) (en
banc) (citing McDonough Power Equipment, Inc. v.
Greenwood, 464 U.S. 548, 554–56 (1984)). All three forms
of bias potentially are implicated here, but we conclude that
Olsen has not demonstrated bias under any theory.
1. Actual Bias
When an allegation of juror impartiality is raised after
trial, the remedy is “a hearing in which the defendant has an
opportunity to prove actual bias.” Dyer, 151 F.3d at 990(quoting Smith v. Phillips, 455 U.S. 209, 215 (1982)).
“Actual bias is, in essence, ‘bias in fact’ — the existence of
a state of mind that leads to an inference that the person will
not act with entire impartiality.” United States v. Mitchell,
568 F.3d 1147, 1151 (9th Cir. 2009) (quoting Gonzalez,
214 F.3d at 1112). “Actual bias is typically found when a
prospective juror states that he can not be impartial, or
expresses a view adverse to one party’s position and responds
equivocally as to whether he could be fair and impartial
despite that view.” Fields, 503 F.3d at 767. While actual
bias may be revealed by a juror’s explicit admissions, more
typically it is demonstrated through circumstantial evidence.
Gonzalez, 214 F.3d at 1111–12. A defendant bears the
burden of demonstrating actual bias. Martinez-Martinez,
369 F.3d at 1081.
32 UNITED STATES V . OLSEN
“The determination of whether a juror is actually biased
is a question of fact,” Fields, 503 F.3d at 767 (citing Dyer,
151 F.3d at 973), which this court reviews “for ‘manifest
error’ or abuse of discretion.” Id. (citing Gonzalez, 214 F.3d
at 1112). “At the same time, ‘[d]oubts regarding bias must be
resolved against the juror.’” Martinez-Martinez, 369 F.3d at
1082 (quoting Gonzalez, 214 F.3d at 1114).
At the evidentiary hearing conducted in this case, the
district court heard testimony from Kevin Ryan that during
the summer of 2002, when he and Leavitt worked together in
the same office, they had at least a dozen conversations about
the Olsen case, which was in the news at the time. According
to Ryan, Leavitt was “adamant” about Olsen’s guilt and
would “argue the points that he read in the paper or saw in the
media, the evidence that they were gathering.” Ryan testified
that Leavitt was familiar with the government’s evidence
regarding the internet websites that Olsen had visited, and
stated: “I think he probably even told me that he’d went
online and looked at one of the websites.” During these
conversations, Ryan said, he challenged Leavitt about
whether valid opinions could be formed before trial,
explaining that “all I knew of Ken Olsen was through my
wife, [that he] was a kind and gentle man.” But according to
Ryan, Leavitt held to his view that Olsen was guilty and was
“very adamant” that the government would be able to prove
its case. Ryan testified: “It seemed like every time he’d
discuss it, whatever was brought up in the media that day,
was one more notch in his belt to prove guilt.” According to
Ryan, other employees within their office might also have
participated in these conversations, although he could not
name any other particular individuals besides himself and
Leavitt who had taken part.
UNITED STATES V . OLSEN 33
Ryan further testified that Leavitt had a reputation within
their profession, the mortgage industry, for being untruthful.
According to Ryan, the owner of the company for which the
two men previously worked had later indicated to Ryan that
Leavitt was untruthful. Ryan said he was told similar things
by a bank representative involved in the industry, and that
after he and Leavitt parted ways he learned from his own
bank representative that his company’s account had been
“red-flagged” because of Leavitt’s association with the
company. Ryan also testified that while he and Leavitt were
working together “it became evident over time that he
continued to lie about several different things.”
Ryan and Leavitt’s business relationship ended in the
summer of 2002, after which the two men had no further
contact. The conversations about Olsen’s case that Ryan
recalled, therefore, took place a full year before Olsen’s trial
began in July 2003.
Leavitt testified at the hearing (which took place in May
2010, seven years after Olsen’s trial) that he had no
recollection of any conversations with Ryan about the Olsen
case. He acknowledged that “if it was on the front headline
— you know, if he said something, I may have commented
back,” but he did not recall learning, in 2002, anything about
a ricin investigation or anything at all about Olsen, nor that
Ryan’s wife knew Olsen. Asked when he first heard of
Olsen, Leavitt answered: “To the best of my knowledge, I
mean, unless I read something in the paper or something, it
was when I came in here . . . the same day that I came into
court” for jury selection.
The district court credited the testimony of both Ryan and
Leavitt, and did not find their accounts to be mutually
34 UNITED STATES V . OLSEN
inconsistent. The court noted that the conversations Ryan
described about Olsen’s case took place a full year before the
trial, and that Leavitt admitted they could have taken place
but simply did not recall one way or the other. The court
cited a lack of any evidence that Leavitt, at the time of the
trial, still held the beliefs that he expressed a year earlier or
even remembered having them. It further noted that during
voir dire Leavitt freely acknowledged having some
familiarity with the case from the media, as did many
prospective jurors, but that Leavitt assured the court that he
could be impartial. In view of these considerations, the
district court concluded that Leavitt’s responses on voir dire
about his prior knowledge of the case were not false. Quoting
Irvin v. Dowd, 366 U.S. 717, 723 (1961), for the proposition
that juror impartiality is not rebutted by the mere existence of
any preconceived notion about the defendant’s guilt, the court
found that Leavitt was not actually biased against Olsen.
“Whether a juror is dishonest is a question of fact[.]”
Fields, 503 F.3d at 767 (citing Dyer, 151 F.3d at 973). Like
the ultimate determination of actual bias, this finding is
reviewed for clear error. Id. (citing Riley v. Payne, 352 F.3d
1313, 1317 (9th Cir. 2003)). We are not firmly convinced
that the district court’s findings about Leavitt’s honesty are
wrong. Certainly, we are struck by the contrast between
Ryan’s vivid recollection of having had many detailed
conversations about the case and Leavitt’s own failure, a year
later during voir dire, to mention these conversations or recall
being exposed to anything more than “a little news blurb on
one of those news break shows, something about ricin or
whatever.” Ryan’s testimony about Leavitt’s reputation for
untruthfulness gives us further pause. Yet we also are
mindful that any casual “water cooler” conversations about
the case at Leavitt and Ryan’s office, as these conversations
UNITED STATES V . OLSEN 35
were later characterized, would have had much less
significance at the time to Leavitt than to Ryan, whose wife
had known Olsen for years and who himself had once met
Olsen.7
Leavitt was subpoenaed to testify at the evidentiary
hearing in May 2010 with no advance warning that he was
going to be questioned about his conduct during the Olsen
voir dire seven years earlier, or about topical office
conversations that took place a year before that. The district
court was able to assess Leavitt’s demeanor as he was
questioned about these matters, and it found his answers
credible. See Thompson v. Keohane, 516 U.S. 99, 111 (1995)
(noting that resolution of “factual issues,” including juror
impartiality, “depends heavily on the trial court’s appraisal of
witness credibility and demeanor”). We are not persuaded
that this conclusion was manifest error or an abuse of
discretion, as required to overturn a trial court’s factual
findings or its conclusions about actual bias. See Fields,
503 F.3d at 767.
Furthermore, actual bias is not proven by the mere fact
that Leavitt learned about the case from the media and formed
7
That supposition is reinforced by the fact that — according to Jeanette
Ryan — Kevin Ryan even told his wife about these office conversations
at the time that they took place. It was precisely because she knew that
Olsen’s case had been discussed in her husband’s office a year earlier, she
testified, that she was surprised to see Leavitt on the jury and immediately
notified Olsen’s wife of her concern that he should not be there. W ith
respect to Kevin Ryan’s personal familiarity with Olsen, he initially told
investigators that he had never met Olsen but later testified at the
evidentiary hearing that his wife reminded him about how he had met
Olsen at his massage therapy office, where Olsen showed Ryan a
technique to use on his wife’s shoulders.
36 UNITED STATES V . OLSEN
prior impressions about it a year before the trial. “[T]he
Supreme Court has cautioned against presuming juror bias
due to familiarity with news reports.” Crater v. Galaza,
491 F.3d 1119, 1133 (9th Cir. 2007) (citing Irvin, 366 U.S. at722–23). “It is not required [that] jurors be totally ignorant
of the facts and issues involved. . . . To hold that the mere
existence of any preconceived notion as to the guilt or
innocence of an accused, without more, is sufficient to rebut
the presumption of a prospective juror’s impartiality would
be to establish an impossible standard.” Id. (quoting Irvin,
366 U.S. at 722–23).
2. Implied Bias
Even where actual bias has not been demonstrated, in rare
instances a court will find implied bias, which is “bias
conclusively presumed as a matter of law.” Mitchell,
568 F.3d at 1151 (quoting Gonzalez, 214 F.3d at 1111). Bias
should be presumed only in “extreme” or “extraordinary”
cases. Id. (citing Tinsley v. Borg, 895 F.2d 520, 527 (9th Cir.
1990)). This court has recognized implied bias in only two
contexts: first, “in those extreme situations ‘where the
relationship between a prospective juror and some aspect of
the litigation is such that it is highly unlikely that the average
person could remain impartial in his deliberations under the
circumstances,’” Fields, 503 F.3d at 770 (quoting Gonzalez,
214 F.3d at 1112), and second, “where repeated lies in voir
dire imply that the juror concealed material facts in order to
secure a spot on the particular jury.” Id. (citing Dyer,
151 F.3d at 982). Only the latter context — repeated lies
during voir dire — is implicated here. Because implied bias
is a mixed question of law and fact, review is de novo. Id.(citing Gonzalez, 214 F.3d at 1112).
UNITED STATES V . OLSEN 37
Most of this court’s decisions presuming bias as a matter
of law have involved situations “where the relationship
between a prospective juror and some aspect of the litigation
is such that it is highly unlikely that the average person could
remain impartial in his deliberations under the
circumstances.” Fields, 503 F.3d at 770. Typically the juror
in question, or a close relative, “has had some personal
experience that is similar or identical to the fact pattern at
issue in the trial.” Gonzalez, 214 F.3d at 1112. See, e.g.,
Mitchell, 568 F.3d at 1148–49; see also Fields, 503 F.3d at768–770 (describing earlier cases). The theory is that even
though some individuals in this position might be able to put
aside their personal experiences, they nevertheless “would be
lacking the quality of indifference which, along with
impartiality, is the hallmark of an unbiased juror” — the court
therefore “presume[s] conclusively” that these jurors will be
affected in their deliberations by those experiences. Dyer,
151 F.3d at 982. In every case where this form of implied
bias has been recognized, the juror in question was not
entirely forthcoming during voir dire about his or her
personal experiences that were similar to the facts involved
in the trial. See Fields, 503 F.3d at 773. That is not the
situation presented here.
Rather, Olsen contends that in addition to concealing his
prior knowledge of the case and attitudes during voir dire,
Leavitt also lied in his juror questionnaire about several
matters pertaining to his own background. In Olsen’s view,
these lies support a finding of implied bias under Green v.
White, 232 F.3d 671 (9th Cir. 2000), and Dyer v. Calderon,
151 F.3d 970 (9th Cir. 1998) (en banc), the two decisions
from this court that have found implied bias “not on the basis
of the juror’s past history, but on the pattern of lies the juror
38 UNITED STATES V . OLSEN
engaged in to secure her seat on the jury.” Green, 232 F.3d
at 677.
In Dyer, a juror’s brother had been killed in a manner
similar to that with which the defendant was alleged to have
killed his victims, but the juror said during voir dire that no
family member had ever been the victim of any crime. Dyer,
151 F.3d at 972. This court found that the record
“conclusively” showed that the juror lied repeatedly to
conceal the nature of her brother’s killing, first during voir
dire and later when questioned by the state trial judge about
the matter. Id. at 979. The juror also “plainly lied” when she
stated during voir dire that none of her relatives had ever been
accused of an offense. This was no insignificant oversight:
the juror’s own husband, charged with rape, had ended up in
the same jail as the defendant and had spoken with him. Id.at 973–94. Further contradicting her voir dire responses, the
juror herself had been the victim of several crimes, and
“nearly every close relative of hers had been arrested” for a
crime at some point. Id. at 980–81.
In part because the district court had not made factual
findings, this court did not rule on whether the juror was
actually biased. Dyer, 151 F.3d at 981. Instead, based on the
“magnitude” of the juror’s lies, as demonstrated by the
evidence developed in an evidentiary hearing conducted by
the district court, this court drew the inference that she “lied
in order to preserve her status as a juror and to secure the
right to pass on Dyer’s sentence.” Id. at 982, 984. The
circumstances therefore added up to “that rare case” where
juror bias must be presumed. Id. at 984. In the course of
reaching this conclusion, the court observed: “A juror . . .
who lies materially and repeatedly in response to legitimate
inquiries about her background introduces destructive
UNITED STATES V . OLSEN 39
uncertainties into the process.” Id. at 983. Even if not
motivated by a personal or vindictive bias against the
defendant, the court explained, such a juror is unfit to serve.
Id.These principles were later applied in Green v. White,
where a juror engaged in a “pattern of misleading statements”
in his juror questionnaire and during voir dire to conceal
felony convictions that under state law would have
disqualified him to serve as a juror. Green, 232 F.3d at 672.
Unlike in Dyer, the juror had no personal experience “similar
or identical to the fact pattern at issue in the trial.” Gonzalez,
214 F.3d at 1112. Instead, the court’s finding of implied bias
was based exclusively on the “destructive uncertainties”
introduced by a juror who lies “materially and repeatedly in
response to legitimate inquiries about her background.”
Green, 232 F.3d at 677 (quoting Dyer, 151 F.3d at 983).
Not surprisingly, Olsen stakes his claim of juror bias
primarily on Green, attempting to draw parallels between the
“pattern of misleading statements” in that case and the
alleged lies by juror Leavitt here. In addition to accusing
Leavitt of concealing his prior knowledge about the case,
Olsen contends that Leavitt lied about his own background to
get on the jury.
Leavitt provided two answers in his juror questionnaire
that he later acknowledged were inaccurate when questioned
about them during the evidentiary hearing. First, Leavitt
indicated that he never had a lawsuit filed against him.
Actually, he had been sued a number of times. At the
evidentiary hearing, he was confronted with evidence that a
former landlord obtained a judgment against him for unpaid
rent. Leavitt testified that he never was served with papers,
40 UNITED STATES V . OLSEN
went to court, or paid the judgment amount, and that he first
learned about the judgment years after the Olsen trial, when
he had to obtain a mortgage to buy a home. Leavitt also was
questioned about whether he was sued by a particular bail
bond company. He testified that to the best of his knowledge,
the company never actually sued him, stating: “I had a traffic
violation. They bonded me out. I did not show up for court.
And they came and picked me up and took me in.” Asked
about two apparent judgments against him by the company,
Leavitt responded: “I never went to court for it. So, if they
did, they got a summary judgment. And it probably affected
my credit, and I probably paid it off. And it would have been
at least ten years prior [to the trial].”
Questioned about whether he was sued for writing bad
checks in 1994, Leavitt answered that he “made bad
mistakes” and “probably wrote bad checks,” but that he did
not recall being sued and “never went to court for it.” When
asked, “So let me understand. Every time you were sued you
just didn’t go to court?”, he answered yes. Leavitt
emphasized repeatedly that he did not recall having been
served with papers to appear in court for any of those cases
against him, that he fully believed he was answering the juror
questionnaire honestly, and that he was “absolutely not”
trying to hide any prior incidents from the court. Leavitt’s
explanation for his lack of awareness about these lawsuits, as
well as for the events in his life underlying them, was that
when they took place in the 1990s he was in the throes of
alcoholism. Later, as he put it, “I finally got married to a
good woman who straightened me out,” and he thereafter
“grew up and had children,” “became an adult,” and “put that
past behind me.”
UNITED STATES V . OLSEN 41
In his juror questionnaire, Leavitt also answered “no” to
a question asking whether he had ever been convicted of a
crime other than a traffic offense. At the evidentiary hearing,
he explained this answer by stating that “at the time, I did not
recall ever being convicted of any other crime.” Confronted
with evidence that he had been prosecuted for and convicted
of criminal trespass in 1994, for an incident at a bowling
alley, Leavitt acknowledged the conviction and that he paid
a fine for it but stated: “I honestly did not recall that event.”
In explaining how he could forget such a thing, he stated:
“It’s real simple. I drank an awful lot back then. I don’t
now.”8
The district court accepted Leavitt’s explanations for why
he had forgotten about his trespass conviction and why he did
not regard himself as having been sued in the other matters.
It found these explanations credible, stating that “the Court
does not find that he intentionally gave the Court false
information” and that “mistaken, but honest juror responses”
do not necessarily require a new trial. The court also
observed that “there is no evidence that the inaccurate
answers were an attempt to serve on a jury, let alone Mr.
Olsen’s jury.” Noting its awareness that doubts regarding
bias must be resolved against the juror, the court stated that
it “does not hold a doubt” about Leavitt’s impartiality.
Although we review de novo the question of whether bias
should be presumed, because implied bias is a mixed question
of law and fact, Hamilton v. Ayers, 583 F.3d at 1107, our
8
Leavitt also acknowledged that he had two or three DUI convictions
— but the juror questionnaire specifically asked about convictions “other
than traffic or driving offenses,” and Leavitt testified, reasonably enough,
that he considered DUIs to be “traffic” offenses.
42 UNITED STATES V . OLSEN
review is not carried out on an entirely blank slate.
Concluding that a juror’s “repeated lies in voir dire” warrant
an inference of bias requires first concluding that the juror
lied in voir dire. See Dyer, 151 F.3d at 979, 981. That
determination — whether a juror has been dishonest —
remains “a question of fact,” about which the district court
here made findings. Fields, 503 F.3d at 767; see Patton v.
Yount, 467 U.S. 1025, 1037–39 (1984). When this court has
presumed bias from a juror’s lies, it has done so either where
there were no factual findings by the trial court about the
juror’s honesty or where those findings were clearly
erroneous.9 Bias has been presumed only where the record
“conclusively” showed that the juror “plainly” lied, and “no
rational trier of fact could find otherwise,” Dyer, 151 F.3d at
979, 981, or where the trial court’s “erroneous factual
finding” that the juror was honest constituted “clear error . . .
not supported by any evidence” and the “only reasonable
inference” from the facts was that the juror lied. Green,
232 F.3d at 676.
The district court in this case credited Leavitt’s
explanation that by the time of Olsen’s trial he no longer
remembered having the opinions about the case that he had
expressed a year earlier. As discussed above, we do not
regard this finding as clearly wrong. We take the same view
9
In Dyer, “the facts were not properly developed by the state court,”
negating any presumption of correctness deriving from federal habeas law,
and the district court did not make factual findings, despite having
conducted an evidentiary hearing. This court therefore addressed the
question of implied bias in the first instance, based on the record generated
by the evidentiary hearing. Dyer, 151 F.3d at 979, 981. In Green, this
court found implied bias only after rejecting, as “clearly erroneous,” the
state courts’ factual determination that the juror did not lie about his
criminal history during voir dire. Green, 232 F.3d at 678.
UNITED STATES V . OLSEN 43
about Leavitt’s claim that the omissions in his juror
questionnaire were honest mistakes. Unlike a situation where
the juror’s conduct “defies an innocent explanation” and
where the trial court’s finding to the contrary is “nearly
inexplicable,” Dyer, 151 F.3d at 979, 981, here it is not at all
obvious from the record that Leavitt was dishonest during
voir dire.
Despite Olsen’s valiant efforts to liken the circumstances
here to those in Green, the comparison simply does not hold
up. In Green, this court found it incontrovertible that the
juror lied to conceal his criminal history, first in his juror
questionnaire and then during voir dire. When called on to
explain this behavior at a post-trial hearing, the juror gave
explanations that were manifestly self-contradictory. Green,
232 F.3d at 672. The juror also engaged in misconduct
during the trial itself revealing his bias: it was alleged by
other jurors that he said, during the proceedings, that he knew
the defendant was guilty the moment he saw him and that he
wished “the judge would let him go back to his place so he
could get his piece” and shoot the defendant. Id. at 673–74.
When questioned about these allegations at the hearing, the
juror offered “a variety of responses” that, again, were
transparently self-contradictory and also conflicted with
statements he had made in a declaration. Id.Here, we think that one could fairly question the
plausibility of Leavitt’s explanations for the omissions in his
juror questionnaire. But these omissions and Leavitt’s
explanations for them during the evidentiary hearing do not
even approach the transparent lies of the juror in Green or the
“misleading, contradictory, and outright false answers” that
the juror later gave to explain those lies. Green, 232 F.3d at
678. The “pattern of lies, inappropriate behavior, and
44 UNITED STATES V . OLSEN
attempts to cover up his behavior,” id. at 676, by the juror in
Green resulted in precisely the type of “extraordinary”
situation where bias may be presumed as a matter of law. See
Mitchell, 568 F.3d at 1151. Leavitt’s omissions in his juror
questionnaire are not as clearly intentional, nor his later
explanations as transparently false, as in that case or in
Dyer.10 It is also worth noting that these omissions cannot
have been motivated by a desire to pass judgment on Olsen,
because Leavitt completed and mailed in the questionnaire
over two weeks before he came to court and learned in which
case he might be selected to serve as a juror.
Because the facts before us, as developed in an
evidentiary hearing by the district court, do not amount to the
type of “extreme” situation in which manifest lies during voir
dire justify a presumption of partiality, we do not find any
implied bias here.
3. McDonough Bias
The third type of juror bias, “so-called McDonough-style
bias,” occurs where a juror fails to answer honestly a material
10
The parallels that Olsen attempts to draw between his case and Green
invariably crumble upon inspection. For instance, Leavitt failed to
mention a misdemeanor trespass conviction that resulted in a fine; the
Green juror failed to reveal a conviction for assault while he was in the
Army that led him to spend six months in the brig. Green, 232 F.3d at
673, 676. Leavitt testified that he forgot about the trespassing incident,
citing his rampant alcoholism during those years; the Green juror gave no
explanation for his omission, and the trial court’s supposition that he
forgot about it was an “unsupported assertion” not backed by “any
evidence.” Id. at 676. Significantly, the court in Green observed that if
the juror in question had testified that he forgot about his assault
conviction, the trial court’s finding might have been reasonable, “at least
enough to avoid clear error.” Green, 232 F.3d at 676.
UNITED STATES V . OLSEN 45
question on voir dire and “‘a correct response would have
provided a valid basis for a challenge for cause.’” Fields,
503 F.3d at 766–67 (quoting McDonough Power Equipment,
Inc., 464 U.S. at 556). The only voir dire responses from
juror Leavitt that conceivably would have justified a for-
cause challenge are his answers regarding his prior
knowledge of and opinions about the case. We have upheld
the district court’s finding that Leavitt did not in fact answer
these questions dishonestly, and accordingly no basis exists
for a McDonough challenge.
Because we also have affirmed the district court’s finding
that Leavitt was not actually biased and have concluded that
bias cannot be presumed in the circumstances of this case, we
reject Olsen’s claim that juror misconduct denied him a fair
trial.
VI. Cumulative Error
Finally, Olsen contends that the cumulative effect of
errors at his trial violated due process by rendering the trial
fundamentally unfair. Olsen cites three alleged errors: (1) an
erroneous jury instruction, (2) the prosecutor’s use of guilt-
assuming hypothetical questions, and (3) the suppression of
the Melnikoff-related Brady material.
Olsen did not raise the jury instruction issue on direct
appeal and has not attempted to establish cause or prejudice
excusing this failure; he appears to concede that the claim is
procedurally barred. See United States v. Mejia-Mesa,
153 F.3d 925, 929 (9th Cir. 1998). Even were it not, Olsen
has given us no reason to believe that there is any merit
whatsoever to this claim, which asks us to assume without
46 UNITED STATES V . OLSEN
any evidence that the jury adopted a strained
misinterpretation of one of the court’s instructions.
With respect to the prosecutor’s use of guilt-assuming
hypothetical questions, a similar version of this claim was
raised and rejected on direct review. This court held that any
error in permitting such questions was cured by the limiting
instruction the district court later gave to the jurors, advising
them to disregard the questions asked of specific witnesses
that assumed the defendant possessed certain items or
searched the internet for particular subjects. Olsen, 120 F.
App’x at 20.
Apart from the curative effect of this limiting instruction,
Olsen has not persuaded us that these allegedly guilt-
assuming questions elicited answers from the witnesses that
affected his substantial rights or damaged his case in any
significant way. See United States v. Shwayder, 312 F.3d
1109, 1121 (9th Cir. 2002) (acknowledging trial court’s error
in allowing guilt-assuming hypothetical questions but
examining whether the answers to these questions were
harmful to the defense).
The district court judge, even while agreeing to give the
limiting instruction, observed that in his recollection all of
Olsen’s character witnesses said that their favorable opinion
of him was not changed by the information with which the
prosecutor confronted them. In one of the examples from the
record that Olsen provides, the prosecutor asked of a
character witness who had described Olsen as a peaceful
person: “If somebody harmed somebody, is he a peaceful
person?” The witness responded: “Depending on their intent
and also I would have to say on a superficial level, that if
somebody harmed somebody, they are not a peaceful person.”
UNITED STATES V . OLSEN 47
It is readily apparent that any damaging effect such an
abstract question and response could have had would be
minimal, especially since Olsen was not accused in this case
of having actually harmed anyone. In the other three
examples Olsen provides, witnesses simply acknowledged
that they did not know about the items found in Olsen’s
cubicle or the internet research on poisons that he conducted.
Whether considered alone or in combination with the
remaining error that Olsen cites — the government’s failure
to disclose Brady material about Arnold Melnikoff — any
error in allowing these questions did not render Olsen’s trial
fundamentally unfair or violate his due process rights.
AFFIRMED.