United States v. Olender ( 2003 )

RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206 2 United States v. Olender No. 01-2426
ELECTRONIC CITATION: 2003 FED App. 0265P (6th Cir.)File Name: 03a0265p.06 ATTORNEY, Detroit, Michigan, for Appellee. ON BRIEF:
Arlene F. Woods, Raymond R. Burkett, Detroit, Michigan,
for Appellant. Daniel L. Lemisch, UNITED STATES
UNITED STATES COURT OF APPEALS ATTORNEY, Detroit, Michigan, for Appellee.
FOR THE SIXTH CIRCUIT _________________
_________________
OPINION
UNITED STATES OF AMERICA , X _________________
Plaintiff-Appellee, - DOWD, Senior District Judge. Defendant-appellant Kevin
-
- No. 01-2426 Peter Olender (Olender) challenges his conviction and
v. - resulting sentence for being a felon in possession of
> ammunition, as well as the district court’s denial of his
, motion for new trial. We reject Olender’s arguments on
KEVIN PETER OLENDER, -
Defendant-Appellant. - appeal and affirm for the reasons that follow.
N I.
Appeal from the United States District Court
for the Eastern District of Michigan at Detroit. Olender was employed at Compuware, Inc., a large
No. 00-80141—Denise Page Hood, District Judge. computer services company located in Farmington Hills,
Michigan. He came to the attention of the Farmington Hills
Argued: June 19, 2003 Police Department after he allegedly told co-workers that he
intended to kill his supervisor and several other workers at
Decided and Filed: August 1, 2003 Compuware. A search warrant executed on Olender’s home
resulted in the seizure of considerable ammunition and a kit
Before: BOGGS and GILMAN, Circuit Judges; DOWD, for the construction of a weapon.1
Senior District Judge.*
_________________ 1
The items seized included:
COUNSEL --Two disassembled FNFAL Steyr assault weapons
kits, complete except for a part know n as a “receiver.”
ARGUED: Arlene F. Woods, Detroit, Michigan, for
Appellant. Daniel L. Lemisch, UNITED STATES --A receipt for one of the F NF AL S teyr assault
weapo ns, which indicated the kit was shipped to Kevin
Olender, 231 2 23 rd Street, W yandotte, M ichigan.
*
--938 rounds of 9 -mm ammunition.
The Honorable David D. Dowd, Jr., Senior United States District
Judge for the Northern District of Ohio, sitting by designation. --800 rounds of 7 .62 ammunition.
1
No. 01-2426 United States v. Olender 3 4 United States v. Olender No. 01-2426
Olender was charged in state court as a felon in possession conviction had been erroneously entered. Olender
of a weapon, but was acquitted. The federal indictment was characterizes this state-court action as “newly discovered
first returned on June 14, 2000 on a single count of felon in evidence,” which he advances as reason to vacate his
possession of ammunition in violation of 18 U.S.C. § 922(g) conviction and sentence and grant him a new trial.
for possessing the 9-mm ammunition. The first superseding
indictment was returned on December 21, 2000, inserting the The government, however, argues that Olender was a felon
7.62 ammunition to the existing felon-in-possession charge. on the date he committed the instant offense, a fact which it
On March 1, 2001, a jury convicted Olender on the single- proved beyond a reasonable doubt. In the government’s view,
count superseding indictment. On June 27, 2001, Olender any ruling which Olender managed to obtain in state court
filed a motion for new trial under Fed. R. Crim. P. 33, subsequent to his commission of, and federal conviction for,
alleging “newly discovered evidence.” The motion was the offense of felon in possession of ammunition, is
denied on August 8, 2001, the same day Olender was irrelevant. We agree.
sentenced to a prison term of 48 months.
The government introduced testimony in its case-in-chief
II. supporting the allegation of Olender’s status as a convicted
felon after Olender refused to stipulate the fact of his prior
A. felony conviction.2
Olender’s primary challenge on appeal focuses on his status In his defense, Olender’s mother indicated the belief that
as a convicted felon, i.e., for the state crime of felonious the state crime was a misdemeanor, not a felony.3
assault. Although the records of the Wayne County Circuit
Court indicated that Olender had been convicted of felonious
assault for striking his girlfriend on the head with a telephone, 2
The government, in proving the fact that Olender was a convicted
requiring that she have stitches, the state court, on Olender’s felon, presented the testimony of Olender’s state probation officer who
motion filed after his March 1, 2001 conviction in the instant testified that Olender was on probation for felonious assault on
case, determined that Olender’s 1996 felonious assault February 12, 200 0, the d ate of the instant offense. The go vernmen t also
introduced certified copies of Olender’s conviction documents which
demonstrated that he was convicted of felonious assault in violation of
Michigan Comp. Laws § 750.82 on May 31, 1996, and received a
--12 high-capacity magazines which accommodated sentence of one year in jail followed by five years of probation.
7.62 amm unition. 3
Olender’s mother testified as follows on February 27, 2001:
--One box of 12 -gauge shotgun shells.
A A misdemeanor.
--48 high-speed “strip clips” for loading 7.62
ammunition, along with bandoliers for carrying the Q You thought it was a misdemeanor?
loaded strip clips.
A Yes.
--One FNFA L gunsmithing book, found in the master
bedroom of the house, containing instructions on how Q Is that what Kevin Olender told you?
to assemble the assault weapons kits found in the
basement. A No one told me anything, I assumed.
No. 01-2426 United States v. Olender 5 6 United States v. Olender No. 01-2426
Additionally, the defendant called his state court lawyer,
Thomas Strauch, who testified that Olender’s state crime was
changed from a misdemeanor to a felony at the time of A I believe it did.
sentencing. 4
Q And when did tha t happ en, if you re call?
A I believe it happened at sentencing.
Q Okay. Th at’s just an assump tion on your p art?
Q And at the tim e of the senten cing when the plea to
A Yes. aggravated assault cha nged , what w as the plea then
changed to?
Q So, having known that your son in your mind was
convicted of a crime, you still had him order this A Felo niou s assault.
ammunition for your husband?
Q And if you kno w, sir, did the trial judge or anyone to
A Yes. your knowledge advise Mr. O lender of any rights or
respo nsibility associated with changing his guilty plea
Q Having known your son was convicted o f a crime and from the misdemeanor aggravated assault to felonious
spent time in jail, you had him order this assault assault?
weap ons kit; is that what your claim is to this Jury?
A I do n ot believe his rights were reenumerated or
A Yes. enumerated at that time.
Q And having known he was convicted to a crime and Q Just two last questions, sir. If you know, why was it
sent to jail, you had him ord er all of those parts you just that Mr. Olender’s guilty plea to aggravated assault
mentioned supp osed ly? change to a guilty plea to felonious assault?
A Yes, sir. A The plea agreement was neg otiated with assistant
W ayne County Prosecuting Attorney Ralph Alesando.
Q Why did you do that, Ma’am? Mr. Alesando’s concern was that there be a
considerable period of probation, a longer probation
A I guess I wasn’t thinking. If I would have known, he than what -- a long term of probation. The five years
wouldn’t been in this today for my guilt. For my probation.
problem.
At the time of taking the plea, Mr. Alesando and I
Q You want to take the blame, don’t you, Mrs. Olender? discussed, you know, how, what terms of probation
would be available. The plea was adjusted, modified if
A No , I don’t. you will, at sentencing date so that M r. Olender could
take advantage of the plea agreement of five years -- a
J.A. at 427. long term of probation.
4
Strauch’s testimony follows: Q Sir, did anyone advise Mr. Olender that by having his
plea chang ed from agg ravated assault to felonious
Q Okay. Sir, did there come a time when the guilty plea assault that he was now pleading guilty to a felony as
to aggravated assault changed? opposed to a misdemeanor?
No. 01-2426 United States v. Olender 7 8 United States v. Olender No. 01-2426
The trial testimony of Olender’s state counsel was accurate proceeding which indicated some confusion as to whether the
as fleshed out by the state record of the taking of the guilty court could impose probation for a term of five years.
plea and the subsequent sentencing. Initially, Olender was Olender then appeared for sentencing on May 31, 1996, and
charged with two counts in state court, i.e., one count of the short sentencing hearing resulted in the offense being
assault with intent to do great bodily harm and one count of increased to felonious assault to accomplish the state’s goal
aggravated stalking. On October 6, 1995, by way of a motion of a period of probation for five years.5
to quash, Olender successfully challenged the charge of
aggravated stalking. The trial on the remaining count was
5
scheduled for April 8, 1996. During the October 1995 motion The colloquy at the state sentencing on May 31, 1996, recites as
hearing, the state prosecutor declared as follows: follows:
Your Honor, I would indicate that even with the ruling THE CLERK: File Number 95-08653, P eop le versus Kevin
Olender. Mr. Olender pled guilty April 5th, 1996, to Aggravated
our offer stands as was before that if the Defendant Assault. He’s here for Sentencing.
pleads as charged now, that we would agree to five years
probation with the first twelve months in Dickerson with MR . STRA UCH : Thomas Strauch, on behalf of Mr. Olender.
some counseling.
MR . ELIZONDO : Ralph Elizondo, on behalf of the People.
J.A. at 573.
Your Honor, Mr. Olender had pled guilty to Aggravated
Assault. There was a sentence agreement in this case. When we
On April 5, 1996, Olender appeared in the state court and put this agreement together, we indicated that this agreement
entered a plea of guilty to aggravated assault during a was valid only if the five years probation was allowable under
the statute for aggravated assault.
It’s my understanding that it’s not. As the result of that,
A W ould you repeat that one for the me, please? I’ve had consultation with Counsel, and I believe what we’re
going to do today is change the plea from Aggravated Assault to
Q At the time o f the sentencing when the plea was Felonious Assault. Therefore, if that is accomplished I believe
changed to felonious assault, are you with me? the sentence agreement would be appropriate for that particular
crime.
A Yes.
MR. ST RAUC H: The D efense would stip ulate to amending the
Q Did anyone advise Mr. Olender, the judge or anyone plea to Fe lonio us Assault and subm it that there is sufficient
advise Mr. Olender that by changing the plea from factual basis already taken on the previous plea for the Court to
aggravated assault to felonious assault, he was no accept that amended plea.
longer pleading guilty to a misdemeanor but rather to
a felony? THE COURT : I agree. As I understand, the Defendant struck
the Complainant with a telephone, and the telephone could be
A I’m not sure if anyone advised him of that at that time. considered a dangerous weapon. Injuries were sustained as the
Some of the state court work is done in a very rapid result of the attack.
fashion in terms of pleas and sentencings on any given
morning. All right. Mr. Olen der, d o you un dersta nd w hat w e’re
doing today?
J.A. at 430–31 (emp hases added).
No. 01-2426 United States v. Olender 9 10 United States v. Olender No. 01-2426
DE FEND AN T O LEND ER : Yes, You r Hon or.
It is quite clear that, at the time of trial, the record proved
that Olender was a felon when he possessed the ammunition.
THE COURT : You can’t get five years probation for Between the time of his federal conviction and the date of
Aggravated Assault, and therefore the Prosecutor has indicated sentencing, Olender filed a motion for new trial wherein he
that there will be no reduced plea. You will be p leading to argued in part as follows:
Felonious Assault, and the sentence would be five years
probation.
Un dersta ndin g tha t, are yo u in a greement? On behalf of the Pe ople of the State of M ichigan, we’d just
want to say, Your Honor, that we’re in hopes that the types of
DE FEND AN T O LEND ER : Yes, Your Honor. I am. behavior that led to this particular circumstance are something
significant in the mind of M r. Olender and that he’ll take
THE COURT : Ver y well. I will accept the statement by the advantage of the time in counseling and take advantage of the
Defendant and the stipulation on this record. time that he’ll have over the next year to reflect upon that and
hopefully straighten the course out. W ith that, we would just ask
MR . STRA UCH : Thank you, Your H onor. that the Court adopt the sentence agreement as it was put
together, Your Honor.
MR. ELIZONDO: Does the Court wish me to modify the plea
agreement that’s in the Court record? THE COURT: All right. M r. Olender, you have a righ t to make
a statement to me before I sentence you. Is there anything you
TH E CO UR T: Y es. want to say?
MR. ELIZON DO: Okay. I’ll do that before we leave today DEF END ANT OLE ND ER: No , Your Ho nor.
then, Judge.
THE CO UR T: A ll right. I should indicate -- do you understand
MR. STRAUCH: Aside from that, Your Honor, other than the that the m aximum pena lty for Felonio us Assault is four years?
corrections necessary in the P.S.I., regarding the plea
amendm ent, we’ve reviewed the other factual contents thereof MR. O LEND ER : Yes.
and did no t ask the C ourt to make any cha nges to that.
THE COURT: B ecause I don’t think that has been put on the
TH E COU RT : All right. record.
M R. STRAU CH: W e would ask that you adopt the sentence MR. OL EN DE R: Yes.
agree ment.
THE COU RT: You will be placed on probation for a period of
THE COURT : All right. Mr. Elizondo, do you wish to say five years, with the first year in the W illiam D ickerso n facility,
anything regarding sentence? with work release if employment is verified; you will receive
batterer’s counseling at A.C.T .; you’re to have no contact with
MR. ELIZO ND O: I would just indicate to the Court that the the Comp lainant. You will also pay restitution in the amount of
Complainant, Margaret Blum is present in the courtroo m tod ay. $64.00, pay court costs in the amount of $165.00 per year at the
I spoke with her and informed her of the right to address the rate of $16.50 a month, and you will pay court appointed
Court. She indicated she did not have really anything she attorney fees.
wished to address to the C ourt.
J.A. at 5 83-8 7 (em phases added ).
No. 01-2426 United States v. Olender 11 12 United States v. Olender No. 01-2426
That on or about June 8, 2001 the Wayne County Olender’s motion for a new trial was subject to the
Prosecutor’s Office acknowledged for the first time that provisions of Fed. R. Crim. P. 33 which, on June 27, 2001,7
it was aware that the Defendant never plead [sic] guilty provided:
to Felonious Assault and agreed to correct the conviction
to reflect the Defendant’s guilty plea to the misdemeanor On a defendant’s motion, the court may grant a new
of Aggravated Assault and Stalking. trial to that defendant if the interests of justice so require.
If trial was by the court without a jury, the court may--on
That the parties were unaware until Mr. Strauch’s defendant’s motion for new trial--vacate the judgment,
testimony that the Defendant had not plead [sic] guilty to take additional testimony, and direct the entry of a new
felony of Felonious Assault. That the Defendant did not judgment. A motion for new trial based on newly
know that everyone had made a mistake nor could he discovered evidence may be made only within three
have anticipated that the Wayne County Prosecutor’s years after the verdict or finding of guilty. But if an
Office would acknowledge the mistake, given that the appeal is pending, the court may grant the motion only
Wayne County Prosecutor’s Office had previously on remand of the case. A motion for a new trial based on
prosecuted the defendant as a Felon in Possession of a any other grounds may be made only within 7 days after
Weapon. the verdict or finding of guilty or within such further
time as the court may fix during the 7-day period.
That the interest of justice requires that the
Defendant’s conviction be set aside based on newly
discovered evidence in accordance with Fed. Rule Crim
Pro [sic] 33. Aggravated Assault and Stalking.
7
J.A. at 147 (internal paragraph numbering omitted).6 After the Federal Rules of Crim inal Procedure were re-stylized, Rule
33 w as amended to read:
6
(a) Defendant’s M otion. Upon the defendant’s motion,
It is unclear what exhibits were submitted in support of the motion, the court may vacate any judgment and grant a new trial if the
but the Joint Appendix includes a transcript of a hearing on June 6, 2001 interest of justice so requires. If the case was tried without a
before State Judge Deborah T homas in which the Assistant Prosecuting jury, the court may take additional testimony and enter a new
Attorney for W ayne County appears to support Olender’s position that he judgment.
did not actually plead to the crime of felonio us assau lt. Subsequently,
after Judge Thomas entered an O rder of Dismissal, wh ich was apparently (b) Time to File.
done without any agreement from the Prosecutor’s Office, the
Pro secuto r’s Office submitted an Emergency Petition for E x Parte Order. (1) Newly Discovered Evidence. Any motion for a new
Then, Judge Tho mas stayed the Order of Dismissal and scheduled a trial grounded on newly discovered evidence must be filed
hearing for July 1 1, 20 01. O n July 18, 20 01, Judge Thoma s app arently within 3 years after the verdict or finding of guilty. If an appeal
lifted the stay and published an ord er which ame nded the charges to is pending, the court may not grant a motion for a new trial until
Aggravated Assault and Aggravated Stalking. The action in the Michigan the appellate court remands the case.
courts continued and, o n M ay 10, 2002, Judge Thomas approved a
Second Amended Order to correct the Order of July 18, 2001. T he (2) Other Gr ound s. Any motion for a new trial grounded
July 18, 2001 order was corrected to read that the charges of Felonious on any reason other than newly discovered evidence must be
Assault, Assault with Intent to Do G reat Bodily Harm Less Than Murder filed within 7 days after the verdict or finding of guilty, or within
and Aggravated Stalking were thereby amended to the charges of such further time as the court sets during the 7-day period.
No. 01-2426 United States v. Olender 13 14 United States v. Olender No. 01-2426
The district court announced its denial of the motion for a County Circuit Court did not constitute newly discovered
new trial from the bench on the day of sentencing, August 8, evidence. The opinion states:
2001, and indicated that an opinion would be published
supporting the denial. In its August 8 oral opinion, the Rule 33 allows for a motion for new trial based on
district court found that the motion was not based on “newly newly discovered evidence if, 1) that evidence was
discovered evidence.” discovered after trial; 2) that it could not have been
discovered before trial with due diligence; 3) that the
The government contends, accurately we hold, that the evidence is material to the issues at trial and not merely
standard of review with respect to a motion for a new trial on cumulative or impeaching; and 4) that the evidence
the basis of newly discovered evidence should be limited to would probably lead to a different verdict. See United
an abuse of discretion. United States v. Glover, 21 F.3d 133, States v. Turns, 198 F.3d 584 (6th Cir. 2000). Motions
138 (6th Cir. 1994).8 for new trial based on newly discovered evidence are
disfavored, and a trial court’s decision not to grant a new
The district court published an opinion on February 26, trial will be affirmed unless it is a “clear abuse of
2003, and found that the procedural actions of the Wayne discretion.” United States v. Hawkins, 969 F.2d 169, 175
(6th Cir. 1992).
***
8
The government cites Un ited States v. A shworth, 836 F.2d 260, 266
(6th Cir. 1988), and United States v. Hernandez, 227 F.3d 686 , 695 (6th Newly discovered evidence does not include new legal
Cir. 2000) (quo ting United States v. Lutz, 154 F.3d 5 81, 589 (6th Cir. theories or new interpretations of the legal significance
1998)). All these cases, however, deal with issues relating to manifest of the evidence. See United States v. Seago, 930 F.2d
weight of the evidence or other errors that arguably required a granting of 482, 489 (6th Cir. 1991). “Evidence will not be deemed
the motion. None address the issue of newly discovered evidence. ‘newly discovered’ simply because it appears in a
However, the decision in Ash worth does cite United States v. Cordle, 377
F.2d 522 , 523 (6th Cir.), cert denied, 389 U.S. 961 (1967), as applying the different light under a new theory. [A] party who desires
abuse of discretion standard of review for denials of new trial based on to present his case under a different theory [i]n which
newly discovered evidence. facts available at the original trial now first become
important, will not be granted a new trial.” United States
In Cordle, supra, the court declared: v. Hamling, 525 F.2d 758, 759 (9th Cir. 1975). An
It is well settled that the granting or refusing of a new trial attempt to relitigate the case on a new theory is not
upon newly discovered impeaching evidence, including considered newly discovered evidence but is merely
recantation by a witness, rests in the sound discretion of the trial newly discovered issue of law. United States v. Shelton,
judge and will not be granted unless the “new” evidence 459 F.2d 1005, 1006-07 (9th Cir. 1972).
probab ly would bring about a different result. In the absence of
a clear showing of an abuse of discretion in dete rmining the Here Defendant did not stipulate to being a “felon” at
probab le effect of the newly discovered evidence in changing the
result of a trial, the action of the trial judge will not be disturbed trial. The parties presented evidence at trial on the
on appeal. United States v. Lewis, 338 F.2d 137, 139 (C.A. 6), “felon” issue, including the testimony of Defendant’s
cert. denied, 380 U.S. 978 . . . and the cases therein cited. counsel, Thomas Strauch. Any claim that Defendant’s
felony plea was improper, is not a newly discovered
377 F.2d at 523.
No. 01-2426 United States v. Olender 15 16 United States v. Olender No. 01-2426
evidence since Defendant was aware at trial of Mr. The defendant’s status on the date of the offense controls
Strauch’s testimony during the trial. Defense counsel in whether the felon in possession laws have been violated. See
this case also was aware of the “felon” issue since it had Lewis v. United States, 445 U.S. 55 (1980);9 United States v.
a copy of Defendant’s state court plea and sentence Morgan, 216 F.3d 557, 562-66 (6th Cir. 2000);10 and United
transcript prior to trial and referred to the transcripts States v. Steverson, 230 F.3d 221, 224-25 (6th Cir. 2000).11
when Mr. Strauch was questioned by the defense. (Ex. Clearly, the evidence before the jury, even the testimony of
D, pp. 4, 6, 13, 14, Defendant’s Brief) Mr. Strauch his state counsel, Strauch, demonstrates that Olender was a
further testified that he had been in contact with felon as of the date of the offense. Moreover, the government
Defendant during Defendant’s state court trial on a felon does not have to prove that the defendant knew he was a
in possession of a firearm charge. (Ex. D, p. 21, felon, only that he knowingly possessed the ammunition. See
Defendant’s Brief) Defendant during the state court felon United States v. Capps, 77 F.3d 350, 352 (10th Cir. 1996)
in possession trial held in December 2000 was (recognizing that “the only knowledge required for a § 922(g)
represented by the same defense counsel as in this case. conviction is knowledge that the instrument possessed is a
Any issue regarding Defendant’s “felon” status was firearm”).12
known by Defendant during the December 2000 state
trial and prior to the instant federal trial since defense
counsel had possession of Defendant’s plea and
sentencing transcript. During the trial in this case, there
was an issue as to Defendant’s status as a “felon” and 9
evidence was presented and testimony was presented on In Lew is, a conviction for a charge of felon in po ssession of a
the issue. Defendant cross-examined the witness, Mr. firearm was no t subject to co llateral attack eve n though the p redicate
felony could be attacked as uncounseled under Gideon v. Wainwright, 372
Strauch, on the validity of the underlying felony U.S. 335 (19 63).
conviction. The jury based its findings based on the
testimony and evidence at trial. The newly-entered 10
In Morgan, the court followed Lewis, sup ra, and affirmed the
Orders do not change the “evidence” relevant to this trial conviction for felon in possession even though the defendant had his civil
since the issue at trial was whether at the time of the date rights resto red after the date of the offense, but prior to the trial.
of the offense, Defendant was a felon. There was
11
sufficient evidence at trial to support the jury’s finding In Steve rson, the convicted felon in possession argued that his trial
that Defendant was a felon at the time of the date of the lawyer was ineffective because he d id not challenge the p rior state
offense. convictions as invalid under the teachings of Boykin v. Alabama, 395 U.S.
238, 243 (1969). The Steverson court, citing Lew is, rejected that
argument. 230 F.3d at 224-25.
R. 107 at 2-4.
12
See also, Un ited States v. D avis, 27 Fed.Ap px. 5 92 , 20 01 W L
Applying the abuse of discretion standard of review, we 1662485, at ** 7 (6th Cir. Dec. 27, 2001) (noting the Capps court’s
find no error in the denial of Olender’s motion for new trial further recognition that “no circuit has extended the knowledge
on the basis that the subsequent action in the Wayne County compo nent of § 922(g)(1) beyond the act of possession itself”) (citing
Circuit Court did not constitute “newly discovered evidence.” Capps, 77 F .3d at 352; United States v. Langley, 62 F .3d 6 02, 6 06 (4th
Cir. 199 5); United States v. Sm ith, 940 F.2d 71 0, 713 (1st Cir. 1991);
United States v. McNeal, 900 F.2d 119, 121 (7th C ir. 199 0); United States
v. Sherbondy, 865 F.2d 99 6, 1001 (9th Cir. 1988 )).
No. 01-2426 United States v. Olender 17 18 United States v. Olender No. 01-2426
B. 2.
Olender also challenges some of the district court’s Olender attempted to introduce the testimony of a person
evidentiary rulings. We will address these briefly. The who was identified as a criminologist. The district court
standard of review as to evidentiary issues is abuse of considered the issue in the absence of the jury and denied
discretion. United States v. Mick, 263 F.3d 553 (6th Cir. Olender’s attempt. The potential witness was prepared to
2001); United States v. Mack, 258 F.3d 548 (6th Cir. 2001). comment adversely on the conduct of the investigation. The
potential testimony was examined under the teachings of
1. Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579(1993), as well as the newly-modified Fed. R. Evid. 701, 702,
Olender filed a pre-trial motion in limine to prevent the and 703. The court granted the government’s motion to
government from introducing the rifle kit and the additional exclude the testimony, both as an expert witness and as a lay
ammunition. The government responded that the rifle kit and witness. In denying Olender’s attempt to call the witness, the
the ammunition were part of the res gestae. The district court district court stated in part as follows:
denied the motion prior to trial, but without any written
opinion supporting the denial. The government had the task Now, I have read the summary report. It is actually
of proving a knowing possession of the ammunition. entitled, “Preliminary Review” and it does not, and I
don’t think I'm revealing anything, but basically
In opposing Olender’s pre-trial motion in limine, the indicates, without saying what that opinion will be, a
government advanced a res gestae evidence argument. Such review of the documents and testimony and the taping of
evidence consists of those acts or items which are some witnesses interviews. And, it appears to the Court
“inextricably intertwined with the charged offense or those that the testimony of the witnesses is permitted in open
acts, the telling of which is necessary to complete the story of court to show that the Defendant did not possess
the charged offense.” United States v. Hardy, 228 F.3d 745, ammunition or that [it] was possessed by another or that
748 (6th Cir. 2000) (citing 2 Weinstein’s Federal Evidence he was not the only resident of the home; and therefore,
§ 404.20[2][c] and [d]). In Hardy, the court stated: did not possess it. And I don’t think expert testimony is
needed for any of that. Those witnesses are eligible to
Proper background evidence has a causal, temporal or come in open court and say that they possessed the
spatial connection with the charged offense. Typically, ammunition or that Mr. Olender, Mr. Kevin Olender, did
such evidence is a prelude to the charged offense, is not possess it. And I don’t think we need an expert to
directly probative of the charged offense, arises from the say we took these interviews and that’s what the
same events as the charged offense, forms an integral investigation would have shown because those witnesses
part of a witness’s testimony, or completes the story of can be called and are the best evidence of that in fact.
the charged offense. And so, I don’t think an expert opinion is needed in that
regard.
Applying the abuse of discretion standard, we find no error.
...
No. 01-2426 United States v. Olender 19
As I indicated, I don’t think that there is anything that
the expert’s going to show that is of a fact nature or of an
expertise that is not able to be shown by a lay witness or
by cross examination of police witnesses. And therefore,
I further find in addition to what I found yesterday that
the expert testimony will not assist the trier of fact in
pointing out the loop holes in the Government’s case in
this particular case. Nor can I think the expert be called
as a lay witness to give opinion on the police
investigation of this offense or to repeat statements given
to him in interviews with potential witnesses.
Under Rule 701 as amended December 2000, which
has to do with a person giving opinion as a lay witness,
the perception of the witnesses is what is the concern,
and under the Advisory Committee notes, it indicates
that firsthand knowledge or observation is essential and
that the testimony must be helpful in gaining a clear
understanding of the witness's testimony and a
determination of the fact at issue.
J.A. at 411-13.
The standard of review is abuse of discretion. General
Elec. Co. v. Joiner, 522 U.S. 136, 138-39 (1997) (citing
Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579(1993)); Kumho Tire Company, Ltd., v. Carmichael, 526 U.S.
137, 152 (1999); Morales v. American Honda Motor Co.,
Inc., 151 F.3d 500, 514-515 (6th Cir. 1998).
Applying the abuse of discretion review standard, the
claimed error in not permitting Olender’s witness to opine on
the conduct of the investigation is without merit.
III. CONCLUSION
We find no error on the part of the district court and
AFFIRM Olender’s conviction and sentence.