U.S. v. Olender

• Decision Date: 01 August 2003
• Docket Number: No. 01-2426.,01-2426.
• Citation: 338 F.3d 629
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Kevin Peter OLENDER, Defendant-Appellant.
• Court: U.S. Court of Appeals — Sixth Circuit

338 F.3d 629

UNITED STATES of America, Plaintiff-Appellee, v. Kevin Peter OLENDER, Defendant-Appellant.

No. 01-2426.

United States Court of Appeals, Sixth Circuit.

Argued June 19, 2003.

Decided and Filed August 1, 2003.

Pursuant to Sixth Circuit Rule 206

ARGUED: Arlene F. Woods, Detroit, Michigan, for Appellant.

Daniel L. Lemisch (argued and briefed), UNITED STATES ATTORNEY'S Office, Detroit, Michigan, for Plaintiff-Appellee.

ON BRIEF: Arlene F. Woods, Raymond R. Burkett (argued and briefed), Detroit, Michigan, for Defendant-Appellant.

Daniel L. Lemisch, UNITED STATES ATTORNEY, Detroit, Michigan, for Appellee.

Before BOGGS and GILMAN, Circuit Judges; DOWD, Senior District Judge.^*

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

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 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 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

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 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

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:

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

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.

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 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 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...