United States of America v. Mark James Olson

United States Court of Appeals
For the Eighth Circuit
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No. 23-1301
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United States of America
lllllllllllllllllllllPlaintiff - Appellee
v.
Mark James Olson
lllllllllllllllllllllDefendant - Appellant
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Appeal from United States District Court
for the District of South Dakota - Southern
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Submitted: October 18, 2023
Filed: March 25, 2024
[Unpublished]
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Before SMITH, Chief Judge,1 LOKEN and COLLOTON,2 Circuit Judges.
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PER CURIAM.
1Judge Smith completed his term as chief judge of the circuit on March 10,
2024. See 28 U.S.C. § 45(a)(3)(A).
2Judge Colloton became chief judge of the circuit on March 11, 2024. See 28
U.S.C. § 45(a)(1).

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A jury convicted Mark Olson of possession of a firearm or ammunition by a
prohibited person, in violation of 18 U.S.C. §§ 922(g)(1), 922(g)(3), and 924(a)(2),
and possession with intent to distribute a controlled substance, in violation of 21
U.S.C. § 841(a)(1). On appeal, Olson argues that the district court3 erred in admitting
the firearm without a proper chain of custody and because the firearm’s serial number
was altered after law enforcement seized it from Olson. We affirm.
I. Background
Sioux Falls Police Department (SFPD) Detective Danijel Mihajlovic
investigated Olson and his brother Tyler Olson (Tyler) for suspected narcotics
distribution from a home in Sioux Falls, South Dakota. While conducting surveillance
on the home, Detective Mihajlovic located a stolen vehicle at the residence. Detective
Mihajlovic and other narcotics detectives followed the vehicle. SFPD Detective Nick
Billings identified the driver as Olson and followed the vehicle into a parking lot. He
observed Olson and the back seat passenger, later identified as Tyler, exit the vehicle
and enter a store.
Detective Billings approached the vehicle and removed the front seat
passenger, a female, whom Detective Mihajlovic then detained. Detective Billings
entered the store, located Olson and Tyler, and ordered them to the ground.
Minnehaha County Sheriff’s Office Detective Dan Christiansen and SFPD K9 Officer
Cody Nachreiner then handcuffed Olson. Officer Nachreiner asked Olson if he had
any weapons. Olson said yes and nodded to the left side of his body. Officer
Nachreiner removed a black handgun from Olson’s front left pocket and gave it to
Detective Christiansen. The handgun was a Glock, Model 42, .380-caliber handgun.
Officers also located ammunition in Olson’s pockets.
3The Honorable Karen E. Schreier, United States District Judge for the District
of South Dakota.
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The officers then moved Olson and Tyler to the parking lot. There, Detective
Christiansen rendered the firearm safe and placed it in SFPD Detective Jason
Holbeck’s patrol car. Detective Holbeck secured the gun in his vehicle and kept the
vehicle locked when absent. Detective Mihajlovic retrieved the firearm from
Detective Holbeck’s vehicle4 and transported it from the scene to the SFPD evidence
room. At the SFPD, Detective Mihajlovic packaged the firearm in a card box, sealed
it, and tagged it as evidence.
A federal grand jury returned an indictment charging Olson with possession of
a firearm and ammunition by a prohibited person. A federal grand jury subsequently
returned a superseding indictment charging Olson with possession of a firearm and
ammunition by a prohibited person and possession with intent to distribute a
controlled substance. Olson pleaded not guilty and proceeded to trial.
At trial, Detective Billings testified about the firearm’s distinctive markings,
stating that “[t]he writing on the firearm has blue paint in it or blue inlay” and that the
firearm’s appearance in court matched its appearance when seized. R. Doc. 153, at
27. On cross-examination, defense counsel asked Detective Billings how many serial
numbers were on a Glock-type gun. However, he never asked Detective Billings if
he dropped the firearm, scratched it, or saw it altered in any way after it was seized
from Olson.
Officer Nachreiner testified that he did not inspect the firearm and could not
testify about the gun’s condition given his momentary possession of it after removing
it from Olson’s pocket.
4Detective Holbeck testified that he believed that it was Detective Billings who
retrieved the gun from his vehicle, but he knew that Detective Billings was working
with Detective Mihajlovic.
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Detective Christiansen testified that he recalled the gun’s distinctive “blue
marker . . . in the lettering, and then a pin of some sort . . . colored blue as well.” Id.
at 57. On cross-examination, defense counsel inquired whether Detective
Christiansen “closely inspect[ed]” the firearm. Id. at 66. Detective Christiansen
responded that a gun he owns “is one model off of this.” Id. He was able to “identify
it very quickly because . . . [he] carr[ies] it every day. So it immediately was
recognizable to [him].” Id. According to Detective Christiansen, “the blue lettering”
is “what stuck out” to him. Id. It was “not something [he had] ever seen before” and
was “odd.” Id. at 66–67. Defense counsel asked Detective Christiansen “how many
serial numbers are generally on this type of weapon,” to which he responded that
“[t]wo to three would be [his] assumption” but definitely more than one. Id. at 67.
Detective Christiansen testified that while rendering the gun safe he did not “believe
[he] dropped the gun or anything.” Id. Defense counsel did not ask Detective
Christiansen if he scratched one of the serial numbers or observed someone else
scratch one of the serial numbers on the firearm.
Detective Holbeck testified that he saw the gun at the scene. “What [Detective
Holbeck] recall[ed] most about it was it had blue inlay in the markings on the slide
and then one of the pins for the lower portion of the gun.” Id. at 73. On
cross-examination, Detective Holbeck testified that he remembered there were
“markings on the plate for the serial number” but did not recall if he had checked the
gun’s stolen status. Id. at 76. Detective Holbeck further testified that he never touched
or handled the gun while it was in his custody.
Detective Mihajlovic identified “Government Exhibit 3” as “the firearm that
was found on Mr. Mark Olson.” R. Doc. 154, at 18. He testified that upon his arrival
to the SFPD evidence room, he packaged the firearm in a card box and tagged it as
evidence. Detective Mihajlovic confirmed that he “recognize[d] identifiers on that
box belonging to [him].” Id. at 19–20. On cross-examination, defense counsel
questioned Detective Mihajlovic about the evidence log for the items seized from
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Olson. An evidence log was shown to Detective Mihajlovic but was never offered
into evidence. Detective Mihajlovic testified that he logged the gun into evidence as
shown by his name on the receipt and his initials on the red seal. Additionally, he
identified the evidence log that defense counsel showed him as the log entry for the
magazine removed from the gun. Detective Billings logged the magazine into
evidence storage. Detective Mihajlovic was not asked if he scratched the gun, nor did
he testify that he had scratched the gun. Government Exhibit 3 was then offered and
received into evidence over Olson’s objection. In addition to the firearm, the
ammunition was offered and received into evidence. Olson did not object to the
admission of the ammunition into evidence.
The government also introduced a recorded phone call between Olson and
Tyler. In this call, Olson is heard telling his brother that the serial number on the gun
was not scratched.
At the close of the government’s case, Olson moved for judgment of acquittal,
arguing that the government failed to establish a prima facie case. Specifically,
counsel argued that the government failed to establish a proper foundation for the
admission of the firearm (Government Exhibit 3). The court denied the motion,
concluding that record evidence
show[ed] that the defendant was found in the store with the gun in his
pocket. There was evidence then submitted to the jury establishing chain
of custody, getting that gun into the evidence locker. Any issues with
that evidence go to the weight to be given to the evidence, and that’s an
issue that’s up to the jury to decide weight.
Id. at 151. The defense did not admit any exhibits into evidence and called no
witnesses. The jury returned guilty verdicts against Olson on both counts.
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II. Discussion
On appeal, Olson argues that the district court erred in admitting the firearm
without a proper chain of custody and because the firearm—specifically, the serial
number—was altered after law enforcement seized it from Olson. He does not dispute
that he was in possession of a firearm—a Glock, Model 42, .380-caliber
handgun—when he was arrested.
Even assuming that the district court erred in admitting the firearm into
evidence due to chain-of-custody concerns, such error was harmless. “An evidentiary
error amounts to harmless error if, after viewing the entire record, the reviewing court
determines that no substantial rights of the defendant were affected, and that the error
had no, or only slight, influence on the verdict.” United States v. Neadeau, 639 F.3d
453, 456 (8th Cir. 2011) (quoting United States v. Mitchell, 31 F.3d 628, 632 (8th Cir.
1994)). First, Olson does not dispute that he was in possession of a firearm—a Glock,
Model 42, .380-caliber handgun—when he was arrested. He was never charged with
possession of a firearm with an obliterated serial number pursuant to 18 U.S.C.
§ 922(k), and his sentence was not enhanced due to scratches on the gun’s serial
number. Second, Olson does not challenge the district court’s admission into
evidence of the ammunition seized from his person. The conviction he now
challenges would stand based on the ammunition alone and certified copies of his
prior felony convictions, which were also received into evidence without objection.
III. Conclusion
Accordingly, we affirm the judgment of the district court.
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