United States v. Oslund

453 F.3d 1048 (8th Cir. 2006)

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Nature of the Case

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Facts

Streslow, a guard employed by Brinks, while making a delivery was shot him three times and died. The Police and the FBI conducted a joint investigation into the murder and robbery. D was identified as a suspect after the FBI received a tip from an attorney representing Zachary Koehler. Koehler and D served time together in several Minnesota prisons and became good friends. Koehler was in State Prison when the robbery occurred, and shortly thereafter, D was also incarcerated for a parole violation. Koehler asked about the robbery and D replied that 'things got out of control and I had to blast him.' Koehler had recently received $1,000 from D and asked him if the money came from the Brinks robbery, to which D 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 D and Koehler. One was admitted at trial, and it reveals that D was suspicious about Koehler's transfer and Koehler's specific questions about certain crimes, including the robbery of an armored vehicle. D referred only to hypothetical situations but did discuss how he would recommend committing such a robbery, and his suggestions were practically identical to the details of the Target robbery. The FBI got another friend of D's, Russell, to cooperate in the investigation and tape conversations between D and him. Hundreds of hours of conversations between Russell and D were recorded. 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. The FBI then installed video and audio recording equipment in a car and had Russell drive D to the Bloomington Target store. D and Russell again discussed the robbery and how D had carried it out. D also made inculpatory statements about the crime to others, who in turn testified to them at trial. Two of the witnesses who were in the Target parking lot made positive identifications of D. Several other people who were with D at various times also testified to his statements and admissions regarding the crime. D offered a phone conversion with an inmate made collect to D’s phone at the time of the robbery and the testimony of the inmate who had ten prior felony convictions. D made a pretrial motion to suppress the tapes. The district court denied D's motion. At trial D challenged the admissibility on different grounds, claiming they lacked proper foundation. The court initially sustained and then reversed itself, and held that the tapes were admissible, and that the foundational elements of McMillan were satisfied. Russell did not testify at trial. A guilty verdict was returned the next day on all three counts. A guilty verdict was returned the next day on all three counts. On appeal, D claimed the government failed to lay a proper foundation for the admission of the taped conversations between Russell and D. D contends that because Russell did not testify at trial, the government failed to properly authenticate the tapes and that Agent Walden's testimony was not sufficient to do so.