U.S. v. Magnuson, s. 81-2093

• Decision Date: 17 June 1982
• Docket Number: Nos. 81-2093,s. 81-2093
• Citation: 680 F.2d 56
• Parties: 10 Fed. R. Evid. Serv. 1188 UNITED STATES of America, Appellee, v. Raymond H. MAGNUSON, Jr., Appellant. to 81-2095.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 56

680 F.2d 56

10 Fed. R. Evid. Serv. 1188

UNITED STATES of America, Appellee, v. Raymond H. MAGNUSON, Jr., Appellant.

Nos. 81-2093 to 81-2095.

United States Court of Appeals,

Eighth Circuit.

Submitted March 11, 1982.

Decided June 17, 1982.

Thomas A. Vakulskas, Sioux City, Iowa, for appellant.

Robert L. Teig, Asst. U. S. Atty., N. D. Iowa, Cedar Rapids, Iowa, for appellee.

Before ROSS, Circuit Judge, FLOYD R. GIBSON, Senior Circuit Judge, and McMILLIAN, Circuit Judge.

PER CURIAM.

There are three separate indictments and convictions at issue on this consolidated appeal. Each of the indictments was based on a different factual situation. Only one of the indictments gave rise to a trial. We will refer to each of the separate cases by the numbers given them on appeal.

In Case No. 81-2093, the only one which went to trial, appellant Magnuson and a William Beckman were charged with three counts of mail fraud, seven counts of wire fraud, and one count of conspiracy to commit mail and wire fraud. The mail fraud counts were dismissed at trial. Magnuson was found guilty on the other counts. He was sentenced to concurrent five-year terms of imprisonment on the wire fraud charges and to a consecutive five-year term on the conspiracy charge.

In Case No. 81-2094, Magnuson was charged in a four-count indictment. After he was tried and convicted in Case No. 81-2093, he plea-bargained on this indictment and pled guilty to one count of wire fraud and one count of conspiracy. He was sentenced to two five-year terms, to run concurrently with each other and with the sentences imposed in Case No. 81-2093.

In Case No. 81-2095, Magnuson was charged in a three-count indictment. He plea-bargained and pled guilty to one count of obstruction of justice. He was sentenced to five years' imprisonment, to run concurrently with the other sentences.

During the trial of Case No. 81-2093, the following facts were established. In the summer of 1980, a Mr. Fowler became interested in purchasing a house from a Mr. Beckman. Fowler eventually decided not to buy. Beckman then suggested that they buy the place and burn it to collect the insurance. At that point, Fowler went to Government authorities and served as an informant. He was wired for sound and he taped several conversations with Beckman.

The evidence showed that Beckman made the arrangements to carry out the arson-for-profit scheme. Beckman discussed "the torch" (the person who would actually set the fire) with Fowler several times, but never by name. Instead, the torch was referred to as the "interior decorator."

A Floyd Barnes testified that on or about September 28, 1981, he was told by Beckman that Barnes should contact Magnuson because there was a job for him. Barnes gave the message to Magnuson.

On October 1, Beckman and Magnuson went to the property at issue, went inside, and looked around. The house was under surveillance at the time. Around this same period, Beckman had several phone conversations with Fowler, who was in Las Vegas, about the arson scheme and whether it would take place while Fowler was out of town. On October 2, Beckman was arrested by state authorities and charged with solicitation. ¹

On February 27, 1981, Magnuson was arrested on the charges involved in Case No. 81-2095. He was questioned at that time by FBI agents. According to Government witnesses, Magnuson confessed, at this time, to having been involved in several crimes, including the scheme with Beckman to burn the house. Magnuson said that he had been offered $4,000 for the job. He said that he was told by Beckman, after Beckman's arrest, not to set the fire.

Magnuson has alleged four issues on appeal. One of the issues was not briefed by Magnuson before this court but, since it is raised by him in his Statements of Issues on Appeal, we will briefly address it. ² We find that appellant's contentions of error are without merit and we affirm the judgments of the district court.

In his Statements of Issues on Appeal, Magnuson contends that the district court ³ committed reversible error in each of the cases now on appeal by failing to suppress the use of his confession in those cases. In Cases No. 81-2094 and 81-2095, Magnuson pled guilty after his motion to suppress the confession was denied. His guilty pleas waived any objection to the denial of the motion to suppress as regards those cases. See United States v. Johnson, 634 F.2d 385, 386 (8th Cir. 1980).

As to the case which went to trial, No. 81-2093, the trial court conducted an evidentiary hearing "in a proceeding separate and apart from the body trying guilt or innocence." Jackson v. Denno, 378 U.S. 368, 394, 84 S.Ct. 1774, 1790, 12 L.Ed.2d 908 (1964). At this suppression hearing, the Government proved by a preponderance of the evidence that Magnuson's confession was voluntary. The court's finding is supported by substantial evidence and is not clearly erroneous. See United States v. Danley, 564 F.2d 813, 815 (8th Cir. 1977); United States v. Haskins, 536 F.2d 775, 778 (8th Cir.), cert. denied, 429 U.S. 898, 97 S.Ct. 263, 50 L.Ed.2d 182 (1976).

Magnuson contends that there was no independent proof that he joined the conspiracy between Fowler and Beckman to burn down the house. He argues that, therefore, the hearsay statements of his alleged co-conspirators should not have been admitted against him, as they were under...