## Facts

- A Brinks armored-car messenger was shot and killed during a cash pickup outside a Target store in Bloomington, Minnesota, and the shooter fled with a bag of cash.
- Law enforcement conducted a lengthy investigation that ultimately focused on Richard Ashton Oslund.
- Oslund’s former roommate, Thomas Russell, cooperated with investigators and secretly recorded extensive conversations with Oslund over several months.
- Russell also drove Oslund to the Target parking lot in a vehicle equipped with audio/video recording devices, during which Oslund discussed how the crime occurred.
- Russell did not testify at trial; an FBI agent authenticated and introduced the recordings based on investigative procedures and voice identification.
- Oslund presented an alibi supported by phone-related evidence and testimony, but the jury convicted him.

## Issues

1. Whether the district court abused its discretion by admitting recorded conversations without the cooperating witness’s testimony, given authentication, gaps/inaudible portions, and alleged inducements.
2. Whether preindictment delay violated due process and, if not timely raised, was waived.
3. Whether an FBI agent’s testimony constituted improper vouching or impermissible opinion regarding eyewitness identifications.
4. Whether alleged prosecutorial misconduct in closing argument required reversal.
5. Whether the evidence was sufficient to support convictions for Hobbs Act robbery, firearm-related murder during a robbery, and felon in possession.
6. Whether sentencing was erroneous, including application of the Armed Career Criminal Act, any Booker-related error, and restitution including future lost income.

## Decision

- The court affirmed the convictions, sentences, and restitution order.
- The recordings were properly authenticated through the FBI agent’s testimony describing recording procedures and identifying voices; any weaknesses affected weight, not admissibility.
- Gaps and inaudible portions did not require exclusion because they were not so substantial as to make the recordings untrustworthy as a whole.
- Any inducements offered to the cooperator went to credibility for the jury, not a basis for excluding the recordings.
- The preindictment delay claim was waived for failure to raise it pretrial and, in any event, failed because the defendant did not show both actual prejudice and intentional delay for tactical advantage or harassment.
- The challenged testimony about eyewitness identifications did not amount to improper vouching warranting reversal.
- Any improper closing-argument remarks, if any, did not affect substantial rights in light of the evidence and limiting instructions.
- The evidence was sufficient when viewed in the light most favorable to the verdict.
- Any Booker error was harmless because the district court indicated it would impose the same life sentence; restitution including future lost income was authorized and supported by evidence.

## Legal Principles

- Tape recordings may be authenticated by a participant or by a witness who heard the conversation or is familiar with the speakers’ voices; the trial court has discretion in determining whether the foundation is adequate.
- Recording defects such as gaps or inaudible segments generally affect weight rather than admissibility unless the unintelligible portions are so extensive that the recording is untrustworthy as a whole.
- Benefits or inducements offered to a cooperating witness typically bear on credibility and weight for the jury, not admissibility, when the jury is informed and can evaluate the evidence.
- A due process claim for preindictment delay requires proof of actual prejudice and intentional delay by the government to gain a tactical advantage or to harass; failure to raise the claim pretrial can result in waiver.
- Allegations of improper argument warrant reversal only when the remarks are improper and prejudicial enough to affect substantial rights and produce a miscarriage of justice.
- Booker-related sentencing error may be harmless where the record shows the same sentence would have been imposed under an advisory-guidelines approach.
- Restitution in a homicide-related prosecution may include future lost income when authorized by statute and supported by evidence.

## Conclusion

The Eighth Circuit upheld Oslund’s convictions and life sentences, holding that the government laid a sufficient foundation for admission of extensive recorded conversations despite the cooperator’s absence and recording imperfections, and that the remaining claims—preindictment delay, evidentiary and argument challenges, sufficiency, sentencing, and restitution—did not warrant reversal.


United States v. Oslund, 453 F.3d 1048 (8th Cir. 2006)