Olsen

MEMORANDUM **

Kenneth Olsen was convicted of and sentenced for possession of a biological agent, toxin, or delivery system for use as a weapon in violation of 18 U.S.C. § 175 (a). He appeals his conviction and sentence, raising several pretrial, trial, and sentencing issues. We affirm the conviction, but remand for resentencing. Because the parties are familiar with factual and procedural history of this case, we will not recount it here.

The district court did not err in joining the two counts with which Olsen was originally charged for purposes of trial. Olsen waived the issue by failing to timely raise a proper objection to the joinder of two counts. United States v. Gonzalez-Torres, 309 F.3d 594, 601 (9th Cir. 2002). Even had Olsen properly objected, his misjoinder claim fails on the merits. A judge can join counts for purposes of trial if the offenses are “of the same or similar character or are based on the same act or transaction.” Fed.R.Crim.P. 8(a); see also Fed.R.Crim.P. 13. Olsen’s two charged offenses arose from the same conduct and were supported by the same evidence. The joinder therefore resulted in no “substantial and injurious effect or influence in determining…