United States v. Charles Mumphrey , 584 F. App'x 784 ( 2014 )

FILED
NOT FOR PUBLICATION SEP 12 2014
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 13-10345
Plaintiff - Appellee, D.C. No. 2:12-cr-00455-HDM-
PAL-2
v.
CHARLES BO MUMPHREY, MEMORANDUM*
Defendant - Appellant.
Appeal from the United States District Court
for the District of Nevada
Howard D. McKibben, Senior District Judge, Presiding
Submitted September 9, 2014**
San Francisco, California
Before: WALLACE, SCHROEDER, and OWENS, Circuit Judges.
Charles Bo Mumphrey and his brother, Richard Nelson, were charged with
robbing a bank in Las Vegas, Nevada on the morning of November 9, 2012.
Nelson was apprehended outside the bank and pled guilty. Mumphrey was
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
convicted by a jury of interference with commerce by robbery under 18 U.S.C.
§ 1951. The district court found that Mumphrey’s prior convictions qualified him
for a career offender enhancement under the federal sentencing guidelines, and the
court imposed a 210-month custodial sentence. Mumphrey appeals from his
judgment of conviction and sentence. We have jurisdiction under 28 U.S.C.
§ 1291, and we affirm.
First, Mumphrey argues that the district court’s career offender enhancement
to his sentence was unconstitutional because the fact of his prior convictions was
not charged and found by the jury as required under Apprendi v. New Jersey, 530
U.S. 466 (2000). However, Apprendi applies only to the finding of a fact “that
increases the penalty for a crime beyond the prescribed statutory maximum.” Id. at
490. Because the maximum statutory sentence for interference with commerce by
robbery is 20 years (or 240 months), 18 U.S.C. § 1951(a), and Mumphrey was
sentenced to only 210 months, Apprendi does not apply. See United States v. Alli,
344 F.3d 1002, 1009 (9th Cir. 2003) (“This court has repeatedly held that Apprendi
does not apply to guidelines enhancements where the sentence imposed is within
the statutory maximum.”).
Second, Mumphrey asserts that two officers involved in the robbery
investigation should not have been permitted to testify at trial about a monitored,
2
recorded phone call that Nelson made after his apprehension. Mumphrey argues
that the officers should not have been permitted to (1) identify his voice on the
recorded call and (2) interpret the meaning of the recorded conversation.
“Where the government offers a tape recording of the defendant’s voice, it
must also make a prima facie case that the voice on the tape is in fact the
defendant’s . . . .” United States v. Gadson, Nos. 12-30007, 12-30047, 2014 WL
4067203, at *8 (9th Cir. Aug. 19, 2014). A prima facie case may be based on the
testimony of a lay witness who “has heard the voice ‘at any time under
circumstances connecting it with the alleged speaker.’” United States v. Thomas,
586 F.2d 123, 133 (9th Cir. 1978) (quoting Fed. R. Evid. 901(b)(5)). Pursuant to
this “low threshold for voice identifications,” an identifying witness need only be
“minimally familiar with the voice he identifies.” United States v. Plunk, 153 F.3d
1011, 1023 (9th Cir. 1998) (internal quotation marks omitted), overruled on other
grounds by United States v. Hankey, 203 F.3d 1160, 1169 n.7 (9th Cir. 2000).
Mumphrey objected at trial to the identifying testimony of an officer to whom he
had spoken multiple times. The district court did not abuse its discretion in
permitting that officer to identify Mumphrey’s voice. See United States v. Orm
Hieng, 679 F.3d 1131, 1135 (9th Cir. 2012) (abuse of discretion review applies to
evidentiary rulings objected to at trial). Mumphrey did not object at trial to the
3
identifying testimony of an officer to whom he had spoken once for approximately
10 minutes. The district court did not commit plain error in permitting that officer
to identify Mumphrey’s voice. Id. (plain error review applies to evidentiary
rulings not objected to at trial).
Pursuant to Federal Rule of Evidence 701, a lay witness is permitted to
opine on the meaning of vague and ambiguous recorded statements and terms,
including “vague pronouns” and “ordinary terms” used in an ambiguous fashion.
Gadson, 2014 WL 4067203, at *11-15. The admission of such testimony is
“committed to the sound discretion of the trial judge and his decision will be
overturned only if it constitutes a clear abuse of discretion.” Id. at *14. It is within
the trial judge’s discretion to admit a law enforcement officer’s “interpretations of
ambiguous conversations based upon the officer’s direct knowledge of the
investigation.” Id. at *15 (internal alteration marks omitted). Here, the district
court’s decision to allow officer testimony explaining the meaning of certain words
and phrases used in the recorded conversation was not a clear abuse of discretion.
Moreover, even if the admission of such testimony were error, it was more
probably than not harmless. The jury’s verdict was amply supported by other
evidence, including (1) the bank manager’s identification of Mumphrey as the
robber, (2) phone records showing that Nelson and Mumphrey exchanged 12 calls
4
on the morning of the robbery, and (3) the discovery of shoes in Mumphrey’s
apartment that matched the shoes worn by the second robber in the bank’s
surveillance video. See United States v. Freeman, 498 F.3d 893, 905-06 (9th Cir.
2007) (admission of testimony interpreting recorded calls was harmless “[i]n light
of the evidence as a whole”). Any possible prejudice was also negated by the
court’s repeated admonition that it was the jury’s duty to interpret the call for itself.
See Dubria v. Smith, 224 F.3d 995, 1002 (9th Cir. 2000) (en banc) (cautionary
instruction ordinarily cures prejudice).
Finally, Mumphrey claims that the district court erred by allowing a
conspiracy charge to go to the jury. This claim is incoherent, because Mumphrey
was not charged with conspiracy and the jury decided no such charge.
AFFIRMED.
5