United States v. Oslund

Following the murder and robbery of a Brinks security guard in front of a Target store, police set up a tip hotline, through which an attorney for Zachary Koehler, a friend of Richard Oslund (defendant), gave information to the FBI identifying Oslund as the perpetrator. The FBI obtained the assistance of Oslund’s close friend and former roommate, Thomas Russell who recorded hundreds of hours of conversations with Oslund over approximately seven months. These recordings contained both inculpatory and exculpatory statements. In a vehicle outfitted with audio and video by the FBI, Russell also drove Oslund to the scene of the crime where Oslund explained to Russell how the crime had happened. At the time of Oslund’s trial, Russell was incarcerated and did not testify. Instead, the tape recordings were introduced into evidence through the testimony of Agent Walden who testified that Russell would contact him before his meetings with Oslund, that he would give Russell a tape recorder that was set to record and could not be turned off by Russell. Agent Walden also identified both speakers, Russell and Oslund, in the recordings. Both the defense and the prosecution introduced portions of the recordings as evidence at Oslund’s trial. Oslund was convicted and appealed his conviction to the United States Court of Appeals for the Eighth Circuit. On appeal, Oslund asserted that the tape recordings were inadmissible because they failed to meet the requirements for admissibility set out in United States v. McMillan, 508 F.2d 101 (8th Cir. 1974). Oslund presented three reasons the recordings did not comply with the McMillan factors: (1) Russell did not testify and Agent Walden’s testimony was inadequate to authenticate the recordings and identify the speakers; (2) there were gaps in the recording that required Russell’s testimony to explain whether these gaps indicated that the recordings were altered; and (3) Oslund was induced to speak to Russell and Russell was induced by the police’s offer of a reward to obtain incriminating statements from Oslund.