United States of America v. Kevin Peter Olender

*The Honorable David D. Dowd, Jr., Senior United States District
Judge for the Northern District of Ohio, sitting by designation.
1
RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
ELECTRONIC CITATION: 2003 FED App. 0265P (6th Cir.)
File Name: 03a0265p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
KEVIN PETER OLENDER,
Defendant-Appellant.
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No. 01-2426
Appeal from the United States District Court
for the Eastern District of Michigan at Detroit.
No. 00-80141—Denise Page Hood, District Judge.
Argued: June 19, 2003
Decided and Filed: August 1, 2003
Before: BOGGS and GILMAN, Circuit Judges; DOWD,
Senior District Judge.*
_________________
COUNSEL
ARGUED: Arlene F. Woods, Detroit, Michigan, for
Appellant. Daniel L. Lemisch, UNITED STATES
2 United States v. Olender No. 01-2426
1The items seized included:
--Two disassembled FNFAL Steyr assault weapons
kits, complete except for a part know n as a “receiver.”
--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.
--800 rounds of 7 .62 ammunition.
ATTORNEY, Detroit, Michigan, for Appellee. ON BRIEF:
Arlene F. Woods, Raymond R. Burkett, Detroit, Michigan,
for Appellant. Daniel L. Lemisch, UNITED STATES
ATTORNEY, Detroit, Michigan, for Appellee.
_________________
OPINION
_________________
DOWD, Senior District Judge. Defendant-appellant Kevin
Peter Olender (Olender) challenges his conviction and
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
appeal and affirm for the reasons that follow.
I.
Olender was employed at Compuware, Inc., a large
computer services company located in Farmington Hills,
Michigan. He came to the attention of the Farmington Hills
Police Department after he allegedly told co-workers that he
intended to kill his supervisor and several other workers at
Compuware. A search warrant executed on Olender’s home
resulted in the seizure of considerable ammunition and a kit
for the construction of a weapon.1

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No. 01-2426 United States v. Olender 3
--12 high-capacity magazines which accommodated
7.62 amm unition.
--One box of 12-gauge shotgun shells.
--48 high-speed “strip clips” for loading 7.62
ammunition, along with bandoliers for carrying the
loaded strip clips.
--One FNFA L gunsmithing book, found in the master
bedroom of the house, containing instructions on how
to assemble the assault weapons kits found in the
basement.
Olender was charged in state court as a felon in possession
of a weapon, but was acquitted. The federal indictment was
first returned on June 14, 2000 on a single count of felon in
possession of ammunition in violation of 18 U.S.C. § 922(g)
for possessing the 9-mm ammunition. The first superseding
indictment was returned on December 21, 2000, inserting the
7.62 ammunition to the existing felon-in-possession charge.
On March 1, 2001, a jury convicted Olender on the single-
count superseding indictment. On June 27, 2001, Olender
filed a motion for new trial under Fed. R. Crim. P. 33,
alleging “newly discovered evidence.” The motion was
denied on August 8, 2001, the same day Olender was
sentenced to a prison term of 48 months.
II.
A.
Olender’s primary challenge on appeal focuses on his status
as a convicted felon, i.e., for the state crime of felonious
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,
requiring that she have stitches, the state court, on Olender’s
motion filed after his March 1, 2001 conviction in the instant
case, determined that Olender’s 1996 felonious assault
4 United States v. Olender No. 01-2426
2The government, in proving the fact that Olender was a convicted
felon, presented the testimony of Olender’s state probation officer who
testified that Olender was on probation for felonious assault on
February 12, 200 0, the date of the instant offense. The go vernment 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
sentence of one year in jail followed by five years of probation.
3Olender’s mother testified as follows on February 27, 2001:
A A misdemeanor.
Q You thought it was a misdemeanor?
A Yes.
Q Is that what Kevin Olender told you?
A No one told me anything, I assumed.
conviction had been erroneously entered. Olender
characterizes this state-court action as “newly discovered
evidence,” which he advances as reason to vacate his
conviction and sentence and grant him a new trial.
The government, however, argues that Olender was a felon
on the date he committed the instant offense, a fact which it
proved beyond a reasonable doubt. In the government’s view,
any ruling which Olender managed to obtain in state court
subsequent to his commission of, and federal conviction for,
the offense of felon in possession of ammunition, is
irrelevant. We agree.
The government introduced testimony in its case-in-chief
supporting the allegation of Olender’s status as a convicted
felon after Olender refused to stipulate the fact of his prior
felony conviction.2
In his defense, Olender’s mother indicated the belief that
the state crime was a misdemeanor, not a felony.3

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No. 01-2426 United States v. Olender 5
Q Okay. That’s just an assump tion on your part?
A Yes.
Q So, having known that your son in your mind was
convicted of a crime, you still had him order this
ammunition for your husband?
A Yes.
Q Having known your son was convicted o f a crime and
spent time in jail, you had him order this assault
weap ons kit; is that what your claim is to this Jury?
A Yes.
Q And having known he was convicted to a crime and
sent to jail, you had him ord er all of those parts you just
mentioned supposed ly?
A Yes, sir.
Q Why did you do that, Ma’am?
A I guess I wasn’t thinking. If I would have known, he
wouldn’t been in this today for my guilt. For my
problem.
Q You want to take the blame, don’t you, Mrs. Olender?
A No , I don’t.
J.A. at 427.
4Strauch’s testimony follows:
Q Okay. Sir, did there come a time when the guilty plea
to aggravated assault changed?
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
sentencing.4
6 United States v. Olender No. 01-2426
A I believe it did.
Q And when did that happ en, if you recall?
A I believe it happened at sentencing.
Q And at the tim e of the senten cing when the plea to
aggravated assault cha nged , what w as the plea then
changed to?
A Felo niou s assault.
Q And if you kno w, sir, did the trial judge or anyone to
your knowledge advise Mr. O lender of any rights or
respo nsibility associated with changing his guilty plea
from the misdemeanor aggravated assault to felonious
assault?
A I do n ot believe his rights were reenumerated or
enumerated at that time.
Q Just two last questions, sir. If you know, why was it
that Mr. Olender’s guilty plea to aggravated assault
change to a guilty plea to felonious assault?
A The plea agreement was negotiated with assistant
W ayne County Prosecuting Attorney Ralph Alesando.
Mr. Alesando’s concern was that there be a
considerable period of probation, a longer probation
than what -- a long term of probation. The five years
probation.
At the time of taking the plea, Mr. Alesando and I
discussed, you know, how, what terms of probation
would be available. The plea was adjusted, modified if
you will, at sentencing date so that M r. Olender could
take advantage of the plea agreement of five years -- a
long term of probation.
Q Sir, did anyone advise Mr. Olender that by having his
plea chang ed from aggravated assault to felonious
assault that he was now pleading guilty to a felony as
opposed to a misdemeanor?

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No. 01-2426 United States v. Olender 7
A W ould you repeat that one for the me, please?
Q At the time o f the sentencing when the plea was
changed to felonious assault, are you with me?
A Yes.
Q Did anyone advise Mr. Olender, the judge or anyone
advise Mr. Olender that by changing the plea from
aggravated assault to felonious assault, he was no
longer pleading guilty to a misdemeanor but rather to
a felony?
A I’m not sure if anyone advised him of that at that time.
Some of the state court work is done in a very rapid
fashion in terms of pleas and sentencings on any given
morning.
J.A. at 430–31 (emp hases added).
The trial testimony of Olender’s state counsel was accurate
as fleshed out by the state record of the taking of the guilty
plea and the subsequent sentencing. Initially, Olender was
charged with two counts in state court, i.e., one count of
assault with intent to do great bodily harm and one count of
aggravated stalking. On October 6, 1995, by way of a motion
to quash, Olender successfully challenged the charge of
aggravated stalking. The trial on the remaining count was
scheduled for April 8, 1996. During the October 1995 motion
hearing, the state prosecutor declared as follows:
Your Honor, I would indicate that even with the ruling
our offer stands as was before that if the Defendant
pleads as charged now, that we would agree to five years
probation with the first twelve months in Dickerson with
some counseling.
J.A. at 573.
On April 5, 1996, Olender appeared in the state court and
entered a plea of guilty to aggravated assault during a
8 United States v. Olender No. 01-2426
5The colloquy at the state sentencing on May 31, 1996, recites as
follows:
THE CLERK: File Number 95-08653, P eop le versus Kevin
Olender. Mr. Olender pled guilty April 5th, 1996, to Aggravated
Assault. He’s here for Sentencing.
MR . STRA UCH : Thomas Strauch, on behalf of Mr. Olender.
MR . ELIZONDO : Ralph Elizondo, on behalf of the People.
Your Honor, Mr. Olender had pled guilty to Aggravated
Assault. There was a sentence agreement in this case. When we
put this agreement together, we indicated that this agreement
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,
I’ve had consultation with Counsel, and I believe what we’re
going to do today is change the plea from Aggravated Assault to
Felonious Assault. Therefore, if that is accomplished I believe
the sentence agreement would be appropriate for that particular
crime.
MR. ST RAUC H: The D efense would stipulate to amending the
plea to Felonio us Assault and subm it that there is sufficient
factual basis already taken on the previous plea for the Court to
accept that amended plea.
THE COURT : I agree. As I understand, the Defendant struck
the Complainant with a telephone, and the telephone could be
considered a dangerous weapon. Injuries were sustained as the
result of the attack.
All right. Mr. Olen der, do you un dersta nd w hat w e’re
doing today?
proceeding which indicated some confusion as to whether the
court could impose probation for a term of five years.
Olender then appeared for sentencing on May 31, 1996, and
the short sentencing hearing resulted in the offense being
increased to felonious assault to accomplish the state’s goal
of a period of probation for five years.5

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No. 01-2426 United States v. Olender 9
DE FEND AN T O LEND ER: Yes, You r Hon or.
THE COURT : You can’t get five years probation for
Aggravated Assault, and therefore the Prosecutor has indicated
that there will be no reduced plea. You will be p leading to
Felonious Assault, and the sentence would be five years
probation.
Un dersta ndin g tha t, are yo u in agreement?
DE FEND AN T O LEND ER: Yes, Your Honor. I am.
THE COURT: Ver y well. I will accept the statement by the
Defendant and the stipulation on this record.
MR . STRA UCH : Thank you, Your H onor.
MR. ELIZONDO: Does the Court wish me to modify the plea
agreement that’s in the Court record?
TH E CO UR T: Y es.
MR. ELIZON DO: Okay. I’ll do that before we leave today
then, Judge.
MR. STRAUCH: Aside from that, Your Honor, other than the
corrections necessary in the P.S.I., regarding the plea
amendm ent, we’ve reviewed the other factual contents thereof
and did no t ask the C ourt to make any changes to that.
TH E COU RT : All right.
M R. STRAU CH: W e would ask that you adopt the sentence
agreement.
THE COURT : All right. Mr. Elizondo, do you wish to say
anything regarding sentence?
MR. ELIZO ND O: I would just indicate to the Court that the
Complainant, Margaret Blum is present in the courtroo m tod ay.
I spoke with her and informed her of the right to address the
Court. She indicated she did not have really anything she
wished to address to the C ourt.
10 United States v. Olender No. 01-2426
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
behavior that led to this particular circumstance are something
significant in the mind of M r. Olender and that he’ll take
advantage of the time in counseling and take advantage of the
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
that the Court adopt the sentence agreement as it was put
together, Your Honor.
THE COURT: All right. M r. Olender, you have a right to make
a statement to me before I sentence you. Is there anything you
want to say?
DEF END ANT OLE ND ER: No , Your Ho nor.
THE CO UR T: A ll right. I should indicate -- do you understand
that the m aximum pena lty for Felonio us Assault is four years?
MR. O LEND ER : Yes.
THE COURT: B ecause I don’t think that has been put on the
record.
MR. OL EN DE R: Yes.
THE COU RT: You will be placed on probation for a period of
five years, with the first year in the W illiam Dickerso n facility,
with work release if employment is verified; you will receive
batterer’s counseling at A.C.T .; you’re to have no contact with
the Comp lainant. You will also pay restitution in the amount of
$64.00, pay court costs in the amount of $165.00 per year at the
rate of $16.50 a month, and you will pay court appointed
attorney fees.
J.A. at 5 83-8 7 (em phases added ).
It is quite clear that, at the time of trial, the record proved
that Olender was a felon when he possessed the ammunition.
Between the time of his federal conviction and the date of
sentencing, Olender filed a motion for new trial wherein he
argued in part as follows:

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No. 01-2426 United States v. Olender 11
6It is unclear what exhibits were submitted in support of the motion,
but the Joint Appendix includes a transcript of a hearing on June 6, 2001
before State Judge Deborah T homas in which the Assistant Prosecuting
Attorney for W ayne County appears to support Olender’s position that he
did not actually plead to the crime of felonious assault. Subsequently,
after Judge Thomas entered an Order of Dismissal, which was apparently
done without any agreement from the Prosecutor’s Office, the
Pro secuto r’s Office submitted an Emergency Petition for E x Parte Order.
Then, Judge Tho mas stayed the Order of Dismissal and scheduled a
hearing for July 1 1, 20 01. O n July 18, 20 01, Judge Thoma s app arently
lifted the stay and published an ord er which ame nded the charges to
Aggravated Assault and Aggravated Stalking. The action in the Michigan
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
July 18, 2001 order was corrected to read that the charges of Felonious
Assault, Assault with Intent to Do G reat Bodily Harm Less Than Murder
and Aggravated Stalking were thereby amended to the charges of
That on or about June 8, 2001 the Wayne County
Prosecutor’s Office acknowledged for the first time that
it was aware that the Defendant never plead [sic] guilty
to Felonious Assault and agreed to correct the conviction
to reflect the Defendant’s guilty plea to the misdemeanor
of Aggravated Assault and Stalking.
That the parties were unaware until Mr. Strauch’s
testimony that the Defendant had not plead [sic] guilty to
felony of Felonious Assault. That the Defendant did not
know that everyone had made a mistake nor could he
have anticipated that the Wayne County Prosecutor’s
Office would acknowledge the mistake, given that the
Wayne County Prosecutor’s Office had previously
prosecuted the defendant as a Felon in Possession of a
Weapon.
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.
J.A. at 147 (internal paragraph numbering omitted).6
12 United States v. Olender No. 01-2426
Aggravated Assault and Stalking.
7After the Federal Rules of Crim inal Procedure were re-stylized, Rule
33 was amended to read:
(a) Defendant’s M otion. Upon the defendant’s motion,
the court may vacate any judgment and grant a new trial if the
interest of justice so requires. If the case was tried without a
jury, the court may take additional testimony and enter a new
judgment.
(b) Time to File.
(1) Newly Discovered Evidence. Any motion for a new
trial grounded on newly discovered evidence must be filed
within 3 years after the verdict or finding of guilty. If an appeal
is pending, the court may not grant a motion for a new trial until
the appellate court remands the case.
(2) Other Ground s. Any motion for a new trial grounded
on any reason other than newly discovered evidence must be
filed within 7 days after the verdict or finding of guilty, or within
such further time as the court sets during the 7-day period.
Olender’s motion for a new trial was subject to the
provisions of Fed. R. Crim. P. 33 which, on June 27, 2001,7
provided:
On a defendant’s motion, the court may grant a new
trial to that defendant if the interests of justice so require.
If trial was by the court without a jury, the court may--on
defendant’s motion for new trial--vacate the judgment,
take additional testimony, and direct the entry of a new
judgment. A motion for new trial based on newly
discovered evidence may be made only within three
years after the verdict or finding of guilty. But if an
appeal is pending, the court may grant the motion only
on remand of the case. A motion for a new trial based on
any other grounds may be made only within 7 days after
the verdict or finding of guilty or within such further
time as the court may fix during the 7-day period.

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No. 01-2426 United States v. Olender 13
8The 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
Cir. 2000) (quo ting United States v. Lutz, 154 F.3d 5 81, 589 (6th Cir.
1998)). All these cases, however, deal with issues relating to manifest
weight of the evidence or other errors that arguably required a granting of
the motion. None address the issue of newly discovered evidence.
However, the decision in Ashworth does cite United States v. Cordle, 377
F.2d 522 , 523 (6th Cir.), cert denied, 389 U.S. 961 (1967), as applying the
abuse of discretion standard of review for denials of new trial based on
newly discovered evidence.
In Cordle, supra, the court declared:
It is well settled that the granting or refusing of a new trial
upon newly discovered impeaching evidence, including
recantation by a witness, rests in the sound discretion of the trial
judge and will not be granted unless the “new” evidence
probab ly would bring about a different result. In the absence of
a clear showing of an abuse of discretion in dete rmining the
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
on appeal. United States v. Lewis, 338 F.2d 137, 139 (C.A. 6),
cert. denied, 380 U.S. 978 . . . and the cases therein cited.
377 F.2d at 523.
The district court announced its denial of the motion for a
new trial from the bench on the day of sentencing, August 8,
2001, and indicated that an opinion would be published
supporting the denial. In its August 8 oral opinion, the
district court found that the motion was not based on “newly
discovered evidence.”
The government contends, accurately we hold, that the
standard of review with respect to a motion for a new trial on
the basis of newly discovered evidence should be limited to
an abuse of discretion. United States v. Glover, 21 F.3d 133,
138 (6th Cir. 1994).8
The district court published an opinion on February 26,
2003, and found that the procedural actions of the Wayne
14 United States v. Olender No. 01-2426
County Circuit Court did not constitute newly discovered
evidence. The opinion states:
Rule 33 allows for a motion for new trial based on
newly discovered evidence if, 1) that evidence was
discovered after trial; 2) that it could not have been
discovered before trial with due diligence; 3) that the
evidence is material to the issues at trial and not merely
cumulative or impeaching; and 4) that the evidence
would probably lead to a different verdict. See United
States v. Turns, 198 F.3d 584 (6th Cir. 2000). Motions
for new trial based on newly discovered evidence are
disfavored, and a trial court’s decision not to grant a new
trial will be affirmed unless it is a “clear abuse of
discretion.” United States v. Hawkins, 969 F.2d 169, 175
(6th Cir. 1992).
* * *
Newly discovered evidence does not include new legal
theories or new interpretations of the legal significance
of the evidence. See United States v. Seago, 930 F.2d
482, 489 (6th Cir. 1991). “Evidence will not be deemed
‘newly discovered’ simply because it appears in a
different light under a new theory. [A] party who desires
to present his case under a different theory [i]n which
facts available at the original trial now first become
important, will not be granted a new trial.” United States
v. Hamling, 525 F.2d 758, 759 (9th Cir. 1975). An
attempt to relitigate the case on a new theory is not
considered newly discovered evidence but is merely
newly discovered issue of law. United States v. Shelton,
459 F.2d 1005, 1006-07 (9th Cir. 1972).
Here Defendant did not stipulate to being a “felon” at
trial. The parties presented evidence at trial on the
“felon” issue, including the testimony of Defendant’s
counsel, Thomas Strauch. Any claim that Defendant’s
felony plea was improper, is not a newly discovered

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No. 01-2426 United States v. Olender 15
evidence since Defendant was aware at trial of Mr.
Strauch’s testimony during the trial. Defense counsel in
this case also was aware of the “felon” issue since it had
a copy of Defendant’s state court plea and sentence
transcript prior to trial and referred to the transcripts
when Mr. Strauch was questioned by the defense. (Ex.
D, pp. 4, 6, 13, 14, Defendant’s Brief) Mr. Strauch
further testified that he had been in contact with
Defendant during Defendant’s state court trial on a felon
in possession of a firearm charge. (Ex. D, p. 21,
Defendant’s Brief) Defendant during the state court felon
in possession trial held in December 2000 was
represented by the same defense counsel as in this case.
Any issue regarding Defendant’s “felon” status was
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
evidence was presented and testimony was presented on
the issue. Defendant cross-examined the witness, Mr.
Strauch, on the validity of the underlying felony
conviction. The jury based its findings based on the
testimony and evidence at trial. The newly-entered
Orders do not change the “evidence” relevant to this trial
since the issue at trial was whether at the time of the date
of the offense, Defendant was a felon. There was
sufficient evidence at trial to support the jury’s finding
that Defendant was a felon at the time of the date of the
offense.
R. 107 at 2-4.
Applying the abuse of discretion standard of review, we
find no error in the denial of Olender’s motion for new trial
on the basis that the subsequent action in the Wayne County
Circuit Court did not constitute “newly discovered evidence.”
16 United States v. Olender No. 01-2426
9In Lew is, a conviction for a charge of felon in po ssession of a
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
U.S. 335 (19 63).
10In Morgan, the court followed Lewis, sup ra, and affirmed the
conviction for felon in possession even though the defendant had his civil
rights resto red after the date of the offense, but prior to the trial.
11In Steve rson, the convicted felon in possession argued that his trial
lawyer was ineffective because he d id not challenge the p rior state
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.
12See also, Un ited States v. D avis, 27 Fed.Ap px. 5 92 , 20 01 W L
1662485, at ** 7 (6th Cir. Dec. 27, 2001) (noting the Capps court’s
further recognition that “no circuit has extended the knowledge
compo nent of § 922(g)(1) beyond the act of possession itself”) (citing
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 )).
The defendant’s status on the date of the offense controls
whether the felon in possession laws have been violated. See
Lewis v. United States, 445 U.S. 55 (1980);9 United States v.
Morgan, 216 F.3d 557, 562-66 (6th Cir. 2000);10 and United
States v. Steverson, 230 F.3d 221, 224-25 (6th Cir. 2000).11
Clearly, the evidence before the jury, even the testimony of
his state counsel, Strauch, demonstrates that Olender was a
felon as of the date of the offense. Moreover, the government
does not have to prove that the defendant knew he was a
felon, only that he knowingly possessed the ammunition. See
United States v. Capps, 77 F.3d 350, 352 (10th Cir. 1996)
(recognizing that “the only knowledge required for a § 922(g)
conviction is knowledge that the instrument possessed is a
firearm”).12

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No. 01-2426 United States v. Olender 17
B.
Olender also challenges some of the district court’s
evidentiary rulings. We will address these briefly. The
standard of review as to evidentiary issues is abuse of
discretion. United States v. Mick, 263 F.3d 553 (6th Cir.
2001); United States v. Mack, 258 F.3d 548 (6th Cir. 2001).
1.
Olender filed a pre-trial motion in limine to prevent the
government from introducing the rifle kit and the additional
ammunition. The government responded that the rifle kit and
the ammunition were part of the res gestae. The district court
denied the motion prior to trial, but without any written
opinion supporting the denial. The government had the task
of proving a knowing possession of the ammunition.
In opposing Olender’s pre-trial motion in limine, the
government advanced a res gestae evidence argument. Such
evidence consists of those acts or items which are
“inextricably intertwined with the charged offense or those
acts, the telling of which is necessary to complete the story of
the charged offense.” United States v. Hardy, 228 F.3d 745,
748 (6th Cir. 2000) (citing 2 Weinstein’s Federal Evidence
§ 404.20[2][c] and [d]). In Hardy, the court stated:
Proper background evidence has a causal, temporal or
spatial connection with the charged offense. Typically,
such evidence is a prelude to the charged offense, is
directly probative of the charged offense, arises from the
same events as the charged offense, forms an integral
part of a witness’s testimony, or completes the story of
the charged offense.
Applying the abuse of discretion standard, we find no error.
18 United States v. Olender No. 01-2426
2.
Olender attempted to introduce the testimony of a person
who was identified as a criminologist. The district court
considered the issue in the absence of the jury and denied
Olender’s attempt. The potential witness was prepared to
comment adversely on the conduct of the investigation. The
potential testimony was examined under the teachings of
Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579
(1993), as well as the newly-modified Fed. R. Evid. 701, 702,
and 703. The court granted the government’s motion to
exclude the testimony, both as an expert witness and as a lay
witness. In denying Olender’s attempt to call the witness, the
district court stated in part as follows:
Now, I have read the summary report. It is actually
entitled, “Preliminary Review” and it does not, and I
don’t think I'm revealing anything, but basically
indicates, without saying what that opinion will be, a
review of the documents and testimony and the taping of
some witnesses interviews. And, it appears to the Court
that the testimony of the witnesses is permitted in open
court to show that the Defendant did not possess
ammunition or that [it] was possessed by another or that
he was not the only resident of the home; and therefore,
did not possess it. And I don’t think expert testimony is
needed for any of that. Those witnesses are eligible to
come in open court and say that they possessed the
ammunition or that Mr. Olender, Mr. Kevin Olender, did
not possess it. And I don’t think we need an expert to
say we took these interviews and that’s what the
investigation would have shown because those witnesses
can be called and are the best evidence of that in fact.
And so, I don’t think an expert opinion is needed in that
regard.
. . .

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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.

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