United States v. Richard A. Oslund ( 2006 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
________________
No. 04-3956
________________
United States of America, *
*
Appellee, *
* Appeal from the United States
v. * District Court for the
* District of Minnesota.
Richard Ashton Oslund, *
* [PUBLISHED]
Appellant. *
________________
Submitted: October 12, 2005
Filed: July 14, 2006
________________
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
1
The Honorable James M. Rosenbaum, Chief Judge, United States District
Court for the District of Minnesota.
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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.
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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
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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
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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 (1975). They include
(1) That the recording device was capable of taking the conversation
now offered in evidence. (2) That the operator of the device was
competent to operate the device. (3) That the recording is authentic and
correct. (4) That changes, additions or deletions have not been made in
the recording. (5) That the recording has been preserved in a manner that
is shown to the court. (6) That the speakers are identified. (7) That the
conversation elicited was made voluntarily and in good faith, without
any kind of inducement.
Id.
2
United States v. Booker, 543 U.S. 220 (2005).
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These factors are useful to determine if a "tape's 'substance and the
circumstances under which it was obtained [provide] sufficient proof of its
reliability.'" Webster, 84 F.3d at 1064 (quoting United States v. Roach, 28 F.3d 729,
733 n.4 (8th Cir. 1994)). "These requirements do not, however, exist in vacuo; they
become meaningful only when viewed in light of the facts of a specific case." Durns
v. United States, 562 F.2d 542, 547 (8th Cir.), cert. denied, 434 U.S. 959 (1977). Not
only do we look to the specific facts of a case, but it is worth noting that the
technology related to recording devices has greatly advanced since McMillan was
decided, a fact that supports the premise that the McMillan factors are guidelines to
be viewed in light of specific circumstances, not a rigid set of tests to be satisfied.
See Webster, 84 F.3d at 1064 (the McMillan factors are general guidelines for a
district court to use in evaluating if the Government has met its burden); see also
United States v. Clark, 986 F.2d 65, 68 (4th Cir. 1993) (government not required to
meet every McMillan factor; the "factors, while helpful, merely 'provide guidance to
the district court when called upon to make rulings on authentication issues.'")
(quoting United States v. Branch, 970 F.2d 1368, 1372 (4th Cir. 1992)). In this light,
we turn to the district court's admission of the tapes.
Oslund made a pretrial motion to suppress the tapes. After a hearing that
included testimony from Russell, Agent Walden, and a St. Paul police officer, the
district court denied Oslund's motion. Russell had been called by the defense to
testify and was in custody at the time of the pretrial hearing before the magistrate
judge. Oslund then challenged the admissibility of the tapes at trial on different
grounds, claiming they lacked proper foundation. The district court initially sustained
the objection and invited briefing on the matter. After further briefing and testimony,
the court reversed itself, held that the tapes were admissible, and that the foundational
elements of McMillan were satisfied. The government chose not to call Russell to
testify at trial, as he was in custody in Wisconsin at the time, and instead made its
case for admission through the testimony of Agent Walden.
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Oslund 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. While it may have been better for Russell to have testified about
the recordings at trial, the district court did not abuse its discretion in holding that the
government met its burden under McMillan. See United States v. Buchanan, 985
F.2d 1372, 1378-79 (8th Cir. 1993) (finding tapes admissible between defendant and
informant even though informant did not testify at trial; McMillan factors were
satisfied through testimony of officer), cert. denied, 512 U.S. 1228 (1994). Agent
Walden testified that Russell would contact him prior to meeting with Oslund, that
he would then provide Russell with a digital recorder, that Agent Walden would turn
the recorder on and then turn it off after receiving it back, and that it was not possible
for Russell to turn the recorder off. In addition, Agent Walden was able to identify
each speaker in the recordings and thus authenticate the identity of the participants.
See United States v. Frazier, 280 F.3d 835, 849 (8th Cir.) (testimony of federal drug
agent that he was familiar with voices through work on wiretap provided sufficient
foundation to identify participants in recorded conversation), cert. denied, 535 U.S.
1107, 536 U.S. 931, & 537 U.S. 911 (2002); United States v. Cerone, 830 F.2d 938,
949 (8th Cir. 1987) ("Any person may identify a speaker's voice if he has heard the
voice at any time."), cert. denied, 486 U.S. 1006 (1988).
Oslund also contends that Russell's testimony is required to explain the
existence of various "gaps" in the recordings. The "gaps" are periods of the
recordings when no voices or conversation can be heard, as when the recording
occurred in a bar and ambient or background noise is all that is discernable at times.
Oslund argues that these "gaps" could show alterations or modifications or reflect
times when Russell had moved the recorder to a location to avoid memorializing
exculpatory statements by Oslund that could cause an inaccurate perception of the
recorded conversation. However, this court has held that gaps in an audiotape affect
"the weight of the evidence, not its admissibility." United States v. Byrne, 83 F.3d
984, 990 (8th Cir. 1996). See also United States v. Ray, 250 F.3d 596, 602 (8th Cir.
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2001) (gaps in tape recording were not so substantial as to render entire recording
untrustworthy and defendant could argue to jury that he was entrapped by informant
into making incriminating statements), cert. denied, 535 U.S. 980 (2002); cf. Webster,
84 F.3d at 1065 (finding court did not abuse its discretion in admitting videotape
where lens was partially obscured and did not cover all of the actions of those being
recorded and the audio was partially unclear because the "infirmities are not so
pervasive as to render the tape as a whole untrustworthy"). The "gaps" themselves,
whether or not Russell testified at the trial, are not enough to render the recordings
inadmissible and instead go to the weight a jury should assign the recordings.
Oslund also argues that the seventh element of McMillan was not met for two
reasons: (1) that he was induced to speak to Russell and (2) that Russell was induced
to cooperate with the government and to orchestrate the conversations because he
wanted to collect part of the $115,000 reward money offered in this case. According
to Oslund, this potential for a financial reward induced Russell to manipulate the
conversations in order to get certain statements from Oslund. Oslund argues that
because Agent Walden was not simultaneously monitoring the conversations as they
occurred, and because Agent Walden cannot speak as to Russell's state of mind, that
only Russell's testimony would satisfy this McMillan factor. We respectfully
disagree.
In United States v. Brown, we held that the seventh factor in McMillan referred
to the statements of the defendant in a recorded conversation, and as such, the
defendant's statement must be made in good faith, without inducement, and
voluntarily. 604 F.2d 557, 560 (8th Cir. 1979). We are presented with no evidence
that Oslund did not voluntarily enter into these conversations with Russell or that he
was somehow induced to do so, and as such, this argument fails. Id.; see also United
States v. Riskin, 788 F.2d 1361, 1370 (8th Cir.) (no inducement when defendant
voluntarily enters into conversation with informant), cert. denied, 479 U.S. 923
(1986).
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Oslund alleges that Russell was induced into participating in the conversations
and in choosing particular topics of discussion. This argument attacks the
voluntariness of Russell's consent to participating in the recordings. Oslund argues
that Russell, described as a lifelong criminal, agreed to participate for his own gain,
whether that be the potential of reward money or the hope that he would receive
assistance from law enforcement on future or pending criminal charges. Russell
signed many consent forms throughout the time the tapes were made, and both he and
various law enforcement officers testified that Russell was not promised leniency for
his cooperation and was warned against committing other crimes while working with
them because the government would not offer him assistance. "An individual's
decision to allow the police to record a . . . conversation . . . is not necessarily
involuntary just because the individual's motives were self-seeking, or because he
harbored expectations of personal benefit." United States v. Kelly, 708 F.2d 121, 125
(3d Cir.), cert. denied, 464 U.S. 916 (1983). See also United States v. Janis, 831 F.2d
773, 775, 779 (8th Cir. 1987) (district court did not abuse its discretion by admitting
tape recording of drug transaction that was made by paid informant), cert. denied, 484
U.S. 1073 (1988); United States v. Wallace, 597 F.2d 641, 642 (8th Cir.) (per curiam)
(conversation was voluntarily recorded even though informant did so after promise
that his assistance would be made known to prosecutor handling pending felony
charge), cert. denied, 444 U.S. 856 (1979); United States v. Rich, 518 F.2d 980, 985
(8th Cir. 1975) (informant voluntarily gave consent to recording even though he did
so in exchange for promise of immunity), cert. denied, 427 U.S. 907 (1976);
McMillan, 508 F.2d at 104 n.2 (after considering totality of circumstances, it was
clear that consent was given by informant, even though she was a paid government
informant). This court addressed generally the issue of informant inducement in
Buchanan, but while the court referred to the seventh McMillan factor, it did so by
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considering the informant's consent to the recording.3 Based on the record before us,
we do not find any improper inducement.
Even if we were to find that there was not a total lack of inducement in the
creation of the taped conversations, that would not automatically render the tapes
inadmissible. The McMillan factors are a guide for the court to use, and if the totality
of the circumstances surrounding the recordings satisfies the court as to their
reliability, even if not every factor is explicitly and completely met, admission is
proper. See Webster, 84 F.3d at 1064. Looking at the totality of the circumstances
here, we conclude that the district court did not abuse its discretion in allowing the
admission of the taped conversations between Oslund and Russell.
B. Preindictment Delay
Oslund next argues that the preindictment delay of five years was prejudicial
to his case and caused a key piece of evidence to be destroyed that would have
supported his alibi. Oslund's alibi throughout the trial was that at the time of the
crime, he was on the phone with David Heil, an inmate at the Lino Lakes prison.
Phone records supported the alibi in that they confirmed that a call was placed
between the prison and Oslund's residence that lasted fifteen minutes and occurred
during the time of the robbery. Heil testified that he placed the call himself and
talked with Oslund, thus providing corroborating testimony for Oslund's alibi.
However, to whom Heil talked that day could not be verified because even though
3
In Buchanan, the appellant argued that the government failed to produce
evidence satisfying the seventh McMillan factor. The government offered proof
through law enforcement agent testimony that the informant had consented to the
recordings. The court held that this was enough to satisfy the seventh factor and that
while the appellant argued that the informant had been induced, "he fail[ed] to
produce any evidence whatsoever to that effect or to refute the evidence presented by
the government." Buchanan, 985 F.2d at 1379.
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inmate phone calls are recorded, Lino Lakes retains the tapes only for two years. By
the time Oslund was indicted in May 2003, the tape of the phone call from November
22, 1998, had been erased. Oslund claims that this almost five year delay prejudiced
him by preventing his access to this tape, which he contends would have exonerated
him.
In order to succeed on this claim, Oslund must show that the government
deliberately delayed his indictment in order to gain some kind of advantage and that
this delay caused him actual prejudice in presenting his case. United States v. Grap,
368 F.3d 824, 829 (8th Cir. 2004). However, Oslund raises this issue for the first
time on appeal. We have held that "it is reasonable to interpret 'defects in
indictments' as including delays in bringing indictments," and as such, any such
motion claiming a defect in the indictment must be brought prior to trial. United
States v. Farmer, 312 F.3d 933, 936 (8th Cir. 2002); see also Fed. R. Crim. P.
12(b)(3) (requiring that "a motion alleging a defect in the indictment" be brought
prior to the start of trial). Because Oslund did not bring this motion prior to trial, the
remedy he seeks is barred, and even plain error analysis on appeal can provide no
relief. United States v. Gamboa, 439 F.3d 796, 804 (8th Cir. 2006).
C. Improper Vouching
Oslund contends that the government committed improper vouching during its
redirect examination of Koehler, when in response to a question about Oslund's
statements about the Target robbery, Koehler stated, "I don't believe he made it up."4
4
Oslund complains about the following line of questioning to Koehler. On
cross-examination by the defense:
Q. Richard Oslund is a bragger, isn't he?
A. Yes.
Q. He wants everybody to know what a dangerous guy he is; right?
A. That's true.
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(Trial Tr. at 530). Vouching occurs "when the government: (1) refers to facts outside
the record or implies that the veracity of a witness is supported by outside facts that
are unavailable to the jury; (2) implies a guarantee of truthfulness; or (3) expresses
a personal opinion about the credibility of a witness." United States v. Benitez-
Meraz, 161 F.3d 1163, 1167 (8th Cir. 1998). Oslund's reliance on government
vouching appears misplaced in this context, as the government did not make any
statements regarding or implying the truthfulness of its witness, Koehler. Instead, the
objection Oslund makes is more akin to improper lay witness opinion testimony, and
Oslund's brief in fact cites to several cases involving this alternative argument.
Q. And when he first told you that he had done the Target job, you didn't know
if he was telling the truth or not; right?
A. That's true.
Q. In fact, given Richard Oslund's reputation, you knew it was possible he was
just making it up; right?
A. No, I never thought that.
(Trial Tr. at 493-94).
On redirect examination by the prosecution:
Q. And based on your experience, could you characterize his bragging?
A. He, he just, he likes to, umm, talk about things that he's done to make
himself, umm, I don't know, just to make people look up to him kinda. But he very
often brags about things that he's done, things that he's gotten away with.
Q. And so based on your experience, it is things that he's actually done?
A. Yes.
Q. And I think Mr. Richman asked you whether it's possible he made that up,
about the, ah, the Target armored car; do you recall that?
A. Yes.
Q. Based on the context of the conversation at the time, what was your belief
as to whether or not he had made it up?
A. I don't believe he made it up.
(Id. at 530).
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The statement at issue here is not one made by government counsel, but one by
a witness regarding his opinion of statements made by Oslund. Rule 701 of the
Federal Rules of Evidence states that if the witness testifying is not doing so as an
expert, then any testimony expressing the witness's opinion or inferences is limited
to those that "are (a) rationally based on the perception of the witness and (b) helpful
to a clear understanding of the witness' [sic] testimony or the determination of a fact
in issue." Fed. R. Evid. 701 (1998). "Personal knowledge or perceptions based on
experience is a sufficient foundation for such testimony." In re Air Crash At Little
Rock Ark., 291 F.3d 503, 515 (8th Cir.), cert. denied, 537 U.S. 974 (2002). If an
analysis of the events being discussed is needed in the form of an opinion, then lay
opinion testimony is admissible. Id. at 515-16. "A district court's decision to admit
or exclude lay opinion testimony is reviewed for abuse of discretion." United States
v. Peoples, 250 F.3d 630, 639 (8th Cir. 2001). Because Oslund did not object to the
redirect testimony at trial, we review for plain error. United States v. Olano, 507 U.S.
725, 732-36 (1993). The statements in question were made on redirect in response
to the defendant's cross-examination on the same subject which had also solicited
Koehler's opinion, and were based on the witness's personal perceptions as a
participant in the conversation. As such, we find no error in the district court
allowing Koehler's testimony.
D. Improper Remarks
Oslund next argues that the prosecution made improper remarks during closing
arguments that attacked the integrity of defense counsel and were insulting. "'A
failure to object to statements made during closing argument waives such an
objection.'" Zutz v. Case Corp., 422 F.3d 764, 774 (8th Cir. 2005) (quoting
Billingsley v. City of Omaha, 277 F.3d 990, 997 (8th Cir. 2002)). Oslund's counsel
made no objection to the remarks at trial, and as such Oslund's claim now fails unless
we find plain error. See id.; see also Olano, 507 U.S. at 732-36. After reviewing the
record, while we find the statements troubling, we conclude that the statements in
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question were not so "plainly unwarranted and clearly injurious" that reversal is
required in order to avoid a "plain miscarriage of justice." Billingsley, 277 F.3d at
997 (internal marks omitted).5
E. Sufficiency of the Evidence
Oslund challenges the sufficiency of the evidence supporting his convictions.
"'We review de novo the question of whether the evidence is sufficient to support a
conviction.'" United States v. Skinner, 433 F.3d 613, 615 (8th Cir. 2006) (quoting
United States v. Vazquez-Garcia, 340 F.3d 632, 636 (8th Cir. 2003)). "Only if 'no
interpretation of the evidence . . . would allow a reasonable-minded jury to conclude
guilt beyond a reasonable doubt' will we reverse a jury's verdict on the grounds of
insufficient evidence." Id. (quoting United States v. Morton, 412 F.3d 901, 904 (8th
Cir. 2005)) (some internal marks omitted).
Oslund specifically attacks the reliability of the two eyewitnesses who
identified him and testified at trial. The use of eyewitness identification testimony
often raises issues concerning the reliability of the claimed identification. See United
States v. Martin, 391 F.3d 949, 954 (8th Cir. 2004). However, this court has stated
that "[t]he evaluation of eyewitness testimony is for the jury alone." United States v.
Kime, 99 F.3d 870, 884 (8th Cir. 1996), cert. denied, 519 U.S. 1141; 520 U.S. 1220
(1997). If there are inconsistencies in a witness's testimony, problems with the
5
The complained of statement occurred during the Government's rebuttal
closing argument. Referring to statements made by defense counsel during his
closing argument, government counsel made the statement, "He is misleading you,
and he himself is throwing smoke" (Trial Tr. at 1322). The defense had alluded to the
fact that Agent Walden had jumped to conclusions and ignored parts of the
investigation because he was so focused on Oslund. In response, the Government
countered the argument that investigators had rushed to judgment with a summary of
the testimony in the case and about the investigation, concluding with the disputed
statement.
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identification, a prolonged length of time that would raise concerns, or other similar
issues, the defense has the opportunity to raise those concerns at trial and bring them
out on cross-examination. Id. The jury then can decide how much weight and
credibility to give such identifications. At Oslund's trial, the jury was instructed by
the district court on factors to consider when weighing eyewitness identification, and
the defense had ample opportunity to raise and argue the issue of its reliability to the
jury. It was then up to the jury to determine the weight to give to the identifications,
and we will not second-guess their determination in this matter.
However, even if the eyewitness identification evidence were excluded, we
would find that there was sufficient inculpatory evidence from which a jury could
reasonably find Oslund guilty. The other evidence included the taped conversations
between Oslund and Russell, taped conversations between Koehler and Oslund,
testimony from several of Oslund's associates regarding confessional statements made
by him, testimony that Oslund had more cash than usual around the time of the crime,
and testimony that Oslund had been seen with a gun similar to that used in the crime
around the time it occurred. In light of this and all the other evidence in the record,
we conclude that Oslund's challenge to the sufficiency of the evidence is without
merit.
F. Sentencing
Oslund was sentenced pre-Booker, but post-Blakely,6 and at his sentencing
hearing he objected to the court's use of the Sentencing Guidelines as
unconstitutional. The court disagreed, holding that it was required to apply the
Guidelines as mandatory. Shortly after sentencing, Booker was decided, holding that
the Guidelines can only be applied in an advisory role. 543 U.S. at 245-46. Oslund
"correctly preserved his Booker issue at sentencing, and we therefore review for
6
Blakely v. Washington, 542 U.S. 296 (2004).
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harmless error, with the government bearing the burden of proof." United States v.
Olthoff, 437 F.3d 729, 732 (8th Cir. 2006) (citing United States v. Mendoza-Mesa,
421 F.3d 671, 672-73 (8th Cir. 2005)).
On appeal, Oslund argues that because the Guidelines are no longer mandatory,
he should have the opportunity to be resentenced by the district court. He contends
that because the court could have imposed a non-Guidelines sentence, it should now
be given an opportunity to do so in light of Booker. Because no Guidelines
sentencing enhancements were imposed (apart from those involving Oslund's prior
convictions), there was no constitutional Booker error, and the burden is thus on the
government to prove that the non-Constitutional error in applying the Guidelines as
mandatory rather than advisory did not substantially influence the outcome of the
proceedings and was, consequently, harmless. Mendoza-Mesa, 421 F.3d at 673.
Oslund was sentenced to the statutory maximum of 20 years on Count 1
(robbery), to life imprisonment on Count 2 (murder during a robbery), and to life
imprisonment on Count 3 (felon in possession of a firearm). Counts 1 and 3 were to
be served concurrently, with Count 2 to be served consecutively. The Guidelines
range on Count 3 was life imprisonment, which the district court imposed due to the
then mandatory application of the Guidelines. United States Sentencing Guidelines
Manual (USSG) § 2A1.1 (Nov. 1998). However, as to Count 2 (murder during a
robbery), the statutory range was ten years to life imprisonment. 18 U.S.C.
§§ 924(c)(1)(A)(iii); 924(j)(1) (1998).7 Section 5G1.2(a) of the 1998 Guidelines
provided that for § 924(c) offenses, the statutory range became the Guidelines range.
7
In order to avoid a potential ex post facto problem, the district court used the
Sentencing Guidelines in effect on November 22, 1998, the date the crime occurred,
rather than those in effect at the time of the sentencing. Likewise, we note that 18
U.S.C. § 924(c) was amended on November 13, 1998, nine days before this crime was
committed. The amendments created a new mandatory penalty under § 924(c) of a
minimum of ten years of imprisonment when a firearm is discharged.
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Paragraph 81 of the Presentence Investigation Report told the district court that the
Guidelines range on Count 2 was five years to life, not recognizing that the recent
amendments had increased the mandatory minimum from five years to ten years when
a firearm is discharged. The district court therefore had the ability on Count 2, even
under the mandatory Guidelines regime, to sentence Oslund anywhere within that
range of ten years to life but declined to exercise that discretion in Oslund's favor.
Instead, the court imposed the longest sentence available to it. "The fact that a district
court chose not to exercise its discretion to impose a lesser sentence is evidence that
the same sentence would have been imposed under an advisory guidelines regime."
United States v. White, 439 F.3d 433, 435 (8th Cir. 2006); see also United States v.
Davis, 442 F.3d 681, 684 (the defendant could not show a likelihood that he would
have received a lesser sentence under an advisory Guidelines regime because the
district court did not use the discretion available to it in his favor when sentencing
under a mandatory Guidelines regime, and a "sentence at the top of the Guidelines
range completely dissipates any residual doubt . . . about whether [the defendant]
would have received a more lenient sentence" had the Guidelines been treated as
advisory); United States v. Perez-Ramirez, 415 F.3d 876, 878 (8th Cir. 2005) (holding
that because the district court did not fully use its discretion to depart from the
Guidelines when determining the proper range or in imposing the term of sentence
(sentence was 2 months above sentencing-range minimum), any Booker error was
harmless).
The court made specific statements at sentencing that also support the
conclusion that any Booker error committed by application of the Guidelines as
mandatory is harmless, and we are left with little doubt that the court would have
imposed the same sentence on Counts 1 and 3 had the Guidelines been treated as
advisory. During the sentencing hearing, the court stated "[s]hould you ever be
released, and it would be contrary to my recommendation that they do so, it is ordered
by statute that you serve a term of supervised release." (Sent. Tr. at 32.) When
discussing restitution payments, the court made the statement that it was optimistic
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that Oslund would not be released. The court then added that "what you did ought not
to be repeated, and I'm placing you in a position where you may not do so." (Sent.
Tr. at 34-35.) After reviewing the sentence pursuant to 18 U.S.C. § 3553(a), we also
find that it is not unreasonable. The court made reference to § 3553(a) when
discussing the reasons for imposing the sentence and stated that the sentence would
satisfy those factors, leading us to believe the district court recognized and considered
them when imposing the sentence. See United States v. Dieken, 432 F.3d 906, 909
(8th Cir. 2006) (district court not required "to categorically rehearse each of the
section 3553(a) factors on the record . . . as long as it is clear that they were
considered). Based on the record before us, we conclude that the court would have
imposed the same sentence on each count had the Guidelines been viewed by the
Court as advisory, and we further find that the sentence imposed on each count is
reasonable when measured by the factors in § 3553(a).
G. Restitution
Oslund was ordered to pay $278,745 in restitution to Brinks. This amount
included the $59,750 that was stolen in the robbery; $8,380.86 for medical and
counseling expenses for Strelow and his family; $7,500 expended on funeral
expenses; $100,369.50 in lost income already paid by Brinks to Strelow's family; and
$102,744.65 committed by Brinks for future lost income that will be paid to the
victim's estate. Oslund objected to the restitution order on two grounds: (1)
restitution was a question for the jury under Blakely/Booker, and (2) the inclusion of
future earnings is not authorized by statute.
Oslund's first challenge fails. We have held that neither Blakely nor Booker
affects the determination of restitution or the burden in establishing a proper amount.
See United States v. May, 413 F.3d 841, 849 (8th Cir.) (finding "persuasive" the view
of other circuits that have determined that Apprendi, Blakely, and Booker do not
affect the determination of restitution amounts), cert. denied, 126 S. Ct. 672 (2005);
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see also United States v. Miller, 419 F.3d 791, 792-93 (8th Cir. 2005), cert. denied,
126 S. Ct. 1379 (2006).
The second objection, to the inclusion of future lost income in a restitution
order, raises an issue of first impression for this court. The district court's fact-
finding as to the amount of restitution under the Mandatory Victim Restitution Act
(MVRA) is reviewed for clear error. Miller, 419 F.3d at 792. The burden is on the
government to prove the amount of restitution owed based on a preponderance of the
evidence, id., and "the court has wide discretion in ordering restitution," United States
v. Reichow, 416 F.3d 802, 804-05 (8th Cir.), cert. denied, 126 S. Ct. 784 (2005).
Restitution in this case was mandatory under the MVRA. 18 U.S.C. § 3663A.
"We review . . . the district court's application of the restitution statute de novo."
Reichow, 416 F.3d at 804. When the MVRA was enacted in 1996, it expanded upon
the permissive restitution statute that was already in place—18 U.S.C. § 3663—and
made it mandatory to order restitution in certain cases, particularly crimes of violence
and theft crimes with identifiable victims who "suffered a physical injury or
pecuniary loss." 18 U.S.C. § 3663A(c)(1). When an offense causes bodily harm to
a victim, restitution must be ordered for medical or psychological treatment, costs of
therapy and rehabilitation, and "income lost by such victim as a result of such
offense." 18 U.S.C. § 3663A(b)(2). If the victim dies, funeral and related expenses
are also included. 18 U.S.C. § 3663A(b)(3). When the crime causes the death of a
victim, the representative of that victim's estate or a family member may assume the
victim's rights. 18 U.S.C. § 3663A(a)(2).
Because this is an issue of first impression, we must determine if the MVRA
authorizes an award of future lost income. "When determining the meaning of a
statute, our starting point must be the plain language of the statute," and our goal "is
to give effect to the intent of Congress." Watson v. Ray, 192 F.3d 1153, 1155-56 (8th
Cir. 1999) (internal marks omitted). If the statute itself does not define a word, then
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the common sense meaning of the word is used and considered binding, absent
congressional intent to the contrary. Id. at 1156. The MVRA does not define
"income" or distinguish between past or future income. However, the statute plainly
states that a victim can recover income that is lost due to a crime causing bodily
injury, and if that victim dies, then the estate can recover in the victim's place.
Because future income is income that is lost to the victim as a direct result of the
crime, the plain language of the statute leads to the conclusion that lost future income
can be included in a restitution order.
However, that does not mean that it is always proper for lost future income to
be awarded in a restitution order. The MVRA also states that restitution does not
need to be awarded if the district court finds that "determining complex issues of fact
related to the cause or amount of the victim's losses would complicate or prolong the
sentencing process to a degree that the need to provide restitution . . . is outweighed
by the burden on the sentencing process." 18 U.S.C. § 3663A(c)(3)(B). If the
amount of future income is contested by a defendant and the district court finds that
determining the proper amount would be unduly burdensome and time-consuming,
the court has the discretion to decline to award future income in the restitution order.
Not every case will be overly burdensome though, such as cases where the amount
is not in dispute or where it is easily determined. In those situations, the MVRA does
not prevent the district court from using its abundant discretion in crafting restitution
orders to include the lost future income of a victim.
While Oslund relies heavily on United States v. Fountain, 768 F.2d 790, 802
(7th Cir. 1985), cert. denied, 475 U.S. 1124 (1986), to support his position that future
wages are not to be included in restitution orders, his reliance is somewhat misplaced.
Fountain involved a restitution order under the Victim and Witness Protection Act
(VWPA), 18 U.S.C. § 3663, which since its amendment in 1996 is very similar to the
MVRA (with the exception that the MVRA is mandatory and the VWPA is
discretionary). Our holding today parallels to a large extent the reasoning of the
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Seventh Circuit, which held in Fountain that restitution orders that require a court to
calculate lost future earnings are unduly burdensome and complicated and as such are
not authorized by the VWPA, unless the amount in question requires no calculation,
such as when it is uncontested. Fountain, 768 F.2d at 802. We agree with the
Seventh Circuit that a burdensome, complicated, or speculative calculation provides
a good reason for the district court to decline to exercise its discretion in favor of
including future lost income in a restitution order. However, an award of lost future
income is not precluded by the MVRA, subject to the burden on the sentencing court.
Oslund does not challenge the amount of the future income awarded by the
district court, only its award in general. As such, the actual amount was uncontested
and there was no need for the district court to do any sort of calculation. We also
believe the employer would not have agreed to pay an amount that was not justified
by the circumstances of its employment relationship with the victim. Because there
was not an undue burden cast upon the court in this case, it was not improper for lost
future income to be included in the restitution order.
III.
Accordingly, we affirm the judgment of the district court.
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