U.S. v. Oslund

• Citation: 453 F.3d 1048
• Decision Date: 14 July 2006
• Docket Number: No. 04-3956.,04-3956.
• Parties: UNITED STATES of America, Appellee, v. Richard Ashton OSLUND, Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (8th Circuit)

453 F.3d 1048

UNITED STATES of America, Appellee, v. Richard Ashton OSLUND, Appellant.

No. 04-3956.

United States Court of Appeals, Eighth Circuit.

Submitted: October 12, 2005.

Filed: July 14, 2006.

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Counsel who presented argument on behalf of the appellant was Paul C. Engh, argued, Minneapolis, MN, for appellant.

Andrew Winter, AUSA, argued, Minneapolis, MN (Nathan P. Petterson, AUSA, Minneapolis, on the brief), for appellee.

Before RILEY, HANSEN, and COLLOTON, Circuit Judges.

HANSEN, Circuit Judge.

Richard Ashton Oslund (Oslund) appeals his convictions for robbery affecting interstate commerce, murder with a firearm during a robbery affecting interstate commerce, and felon in possession of a firearm. See 18 U.S.C. §§ 922(g)(1); 924(c)(1)(A), (e)(1), (j)(1); 1951 (1998). After a two-week trial, Oslund was convicted by a jury for the robbery and murder of a Brinks security guard who was making a delivery and pickup at a Target store in Minnesota. After the verdict, the district court¹ sentenced Oslund to two consecutive life terms, a concurrent twenty year term, and $278,745.00 in restitution. Oslund appeals his convictions and sentences on seven grounds. We affirm.

I.

William Strelow (Strelow) and Mike Frost (Frost), both employees of Brinks Security, traveled in an armored vehicle to the Target store in Bloomington, Minnesota, on November 22, 1998, to deliver and to retrieve money. Strelow was working as the messenger, the person who transferred the money to and from the vehicle. Frost was the driver and stayed in the vehicle while Strelow made the deliveries. Upon arriving at Target, Strelow loaded a dolly with several boxes of coins and entered the store. He transferred the coins to a store employee who then gave Strelow two bags, one containing checks and the other containing $59,750 in cash.

While Strelow was in the store, Frost monitored the area around the entrance. He noticed a man standing near the back of the truck, and as a cautionary measure notified Strelow of the man via two-way radio. Soon after, Strelow exited the store and went to the rear of the truck. At that time, the man who had been standing near the truck walked up to Strelow, shot him three times, grabbed the bag containing the cash, and ran. Strelow later died from his wounds.

The Bloomington Police Department and the FBI conducted a joint investigation into the murder and robbery. There were 39 witnesses who had been in the parking lot at the time the crime was committed. Three witnesses met with a sketch artist and three different drawings were produced, one of which was widely distributed. Over 500 tips were received through a tip hotline. Numerous possible suspects were identified and investigated, and in early 1999, Oslund was identified as a suspect after the FBI received a tip from an attorney representing Zachary Koehler.

Koehler first met Oslund in 1992, and they later served time together in several Minnesota prisons and became good friends. Koehler was in Stillwater State Prison when the Target robbery occurred, and shortly thereafter, Oslund was also incarcerated at Stillwater for a parole violation. Koehler sought out Oslund and spoke to him briefly, noticing a new, large tattoo on Oslund's neck. He asked Oslund about it and Oslund replied that he "had to do it after the Target." (Trial Tr. at 471-72). Koehler knew about the Brinks robbery and to what Oslund was referring. He then asked Oslund what happened and Oslund replied that "things got out of control and I had to blast him." (Id. at 476). Koehler had recently received $1,000 from Oslund, and asked him if the money came from the Brinks robbery, to which Oslund replied that it had. After this conversation, Koehler called his attorney to pass the information along to the FBI.

The FBI taped two conversations between Oslund and Koehler, on June 16 and June 21, 1999, after arranging to have Koehler transferred to a different prison in which Oslund was then incarcerated. The June 21 conversation was admitted at trial, and it reveals that Oslund was suspicious about Koehler's transfer and Koehler's specific questions about certain crimes, including the robbery of an armored vehicle. While Oslund referred only to hypothetical situations, he did discuss how he would recommend committing such a robbery and his suggestions were practically identical to the details of the Target robbery.

Soon after these conversations, FBI Agent James Walden approached one of Oslund's close friends and former roommates, Thomas Russell, who agreed to cooperate in the investigation and tape conversations between Oslund and him. Taping did not begin until August 28, 2000, though, due to difficulty in finding a time when neither Russell nor Oslund was in custody. Hundreds of hours of conversations between Russell and Oslund were recorded by the FBI between August 28, 2000, and March 17, 2001.

Oslund was reluctant at first to discuss the robbery but eventually began discussing the Target robbery after Russell told him he wanted to rob an armored car and was looking for some advice about how to do it. There were both inculpatory statements, some confessional in nature, and exculpatory statements on the tapes. Both the defense and the prosecution used excerpts from the tapes at trial.

On the two-year anniversary of the crime, the FBI installed video and audio recording equipment in a car and had Russell drive Oslund to the Bloomington Target store. Oslund and Russell again discussed the robbery and how Oslund had carried it out. Oslund also made inculpatory statements about the crime to others, who in turn testified to them at trial. Thomas Nelson testified that in 1999, Oslund described parts of the robbery and murder in several conversations between them, sometimes with others present. He added that Oslund even acted out how things had happened. Several other people who were with Oslund at various times also testified to his statements and admissions regarding the crime.

Two of the witnesses who were in the Target parking lot made positive identifications of Oslund. One, Melissa Downey, had made direct eye contact with Oslund for a short time before ducking behind a car when he pointed the gun at her. She met with Agent Walden on April 12, 2001, to view a multipicture photographic lineup. Ms. Downey identified Oslund's photograph as the person who had committed the crime, and she later identified him at trial.

The other witness who identified Oslund was Ryan McDonald, a teenager at the time of the robbery and murder. McDonald was walking towards the store and saw a man standing by the rear of the armored truck. As he continued towards the store, he saw the man pull a gun. At this time, McDonald dove in front of the Brinks truck, heard three gunshots, and then heard a car pull out of the parking lot, tires squealing. McDonald met with Agent Walden on December 12, 2002, to review a multipicture photographic lineup. McDonald identified Oslund's photograph as the man he saw, and he also identified Oslund at trial.

Oslund offered an alibi, contending that he could not have committed the crime because he was at home and on the phone at the time. He used phone records to show that a collect call was placed from the Lino Lakes prison to the apartment where Oslund was then living at 2:59 p.m. on November 22, 1998. The call lasted fifteen minutes. David Heil, an inmate at Lino Lakes at that time who has a lengthy criminal record with more than ten prior felonies, testified that he had placed the call and spoke with Oslund. Heil even recalled the telephone conversation he had had with Oslund some six years prior. Upon cross-examination, Heil admitted that his memory of the conversation had been refreshed by a defense investigator prior to trial and that he was a good friend of Oslund's and would help him out if asked.

Oslund was indicted on May 5, 2003, and trial began on October 12, 2004. The case went to the jury on October 25, 2004, and a guilty verdict was returned the next day on all three counts. The district court sentenced Oslund to the statutory maximum of twenty years for the robbery (Count 1), life imprisonment on the murder conviction (Count 2), and life imprisonment for being a felon in possession of a firearm (Count 3). Oslund was also ordered to pay $278,745 in restitution. Oslund challenges his convictions and sentences on seven grounds: (1) the government failed to lay a proper foundation for the admission of the taped conversations between Russell and Oslund; (2) undue delay in the indictment caused prejudice to Oslund; (3) the government committed improper vouching; (4) the government improperly attacked the defense counsel during closing arguments; (5) the evidence was insufficient to sustain the convictions; (6) the judge committed a Booker² error at sentencing; and (7) it was error for the court to order restitution for future lost wages.

II.

A. Improper Admission of Evidence

Oslund first challenges the admission of the taped conversations, alleging that no proper foundation for their admission had been made. Specifically, he challenges the authenticity of the tapes and claims that the tapes were the result of unlawful inducement. "The admission of tape recordings is `within the sound discretion of the trial court and will not be reversed unless there has been an abuse of that discretion.'" United States v. Webster, 84 F.3d 1056, 1064 (8th Cir.1996) (quoting United States v. Martinez, 951 F.2d 887, 888 (8th Cir.1991) (internal marks omitted)).

Several nonexclusive factors should be considered when determining the admissibility of tape-recorded conversations. United States v. McMillan, 508 F.2d 101, 104 (8th Cir.1974), cert. denied, 421 U.S. 916, 95 S.Ct. 1577, 43 L.Ed.2d 782 (1975). They include

(1) That the recording device was capable of taking the conversation now offered in evidence. (2) That the...