                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 06a0795n.06
                            Filed: October 25, 2006

                                          NO. 05-4101

                             UNITED STATES COURT OF APPEALS
                                  FOR THE SIXTH CIRCUIT


UNITED STATES OF AMERICA,                            )
                                                     )
       Plaintiff-Appellee,                           )
                                                     )       ON APPEAL from the United States
v.                                                   )       District Court for the Southern
                                                     )       District of Ohio.
JEFFREY D. MUNNERLYN,                                )
                                                     )       OPINION
       Defendant-Appellant.                          )
                                                     )
                                                     )


       Before: ROGERS and GRIFFIN, Circuit Judges; HOOD, Chief District Judge.*

       HOOD, Chief District Judge. Jeffrey D. Munnerlyn (“Defendant” or “Munnerlyn”) was

convicted in the United States District Court for the Southern District of Ohio of three armed

bank robberies and of using and carrying a firearm during and in relation to those three robberies.

Defendant challenges the district court’s denial of his motion for acquittal on Counts 1, 2, 3, 4,

and 6 and claims that the district court erred by admitting recordings of his phone conversations.

For the reasons that follow, we AFFIRM the judgment of the district court.

       On October 21, 2004, a grand jury for the Southern District of Ohio returned a six-count

indictment against Munnerlyn. In Counts 1, 3, and 5 of his indictment, Munnerlyn was charged

with armed robbery of the Heartland Bank in Grove City, Ohio on April 1, 2004, June 11, 2004,


       *
        The Honorable Joseph M. Hood, Chief United States District Judge for the Eastern District
of Kentucky, sitting by designation.
No. 05-4101
United States v. Munnerlyn

and September 8, 2004, in violation of 18 U.S.C. § 2113(a) and (d). Counts 2, 4, and 6 charge

Munnerlyn with using and carrying a firearm during and relation to those three bank robberies, in

violation of 18 U.S.C. § 924(c)(1)(A)(ii) and (iii). Following a jury trial at which Munnerlyn

represented himself, he was found guilty on all six counts and subsequently sentenced to 798

months. Munnerlyn filed a timely notice of appeal.

                                                  I.

       Munnerlyn argues that the district court erred by denying his motion for acquittal as to

Counts 1, 2, 3, 4 and 6 because the evidence presented by the government was insufficient to

support the conviction. “The standard for evaluating claims that a conviction is not supported by

sufficient evidence presents a very difficult hurdle for the criminal appellant . . . .” United States

v. Maxwell, 160 F.3d 1071, 1077 (6th Cir. 1998). “‘[T]he relevant question is whether, after

viewing the evidence in the light most favorable to the prosecution, any rational trier of fact

could have found the essential elements of the crime beyond a reasonable doubt.’” Id. (quoting

Jackson v. Virginia, 443 U.S. 307, 319 (1979) (emphasis in Jackson)). This Court examines the

evidence in the light most favorable to the government and draws all inferences in the

government’s favor. United States v. Maliszewski, 161 F.3d 992, 1005 (6th Cir. 1998).

       The first four counts refer to the April 1, 2004, and June 11, 2004, robberies. Munnerlyn

contends that the government’s evidence was insufficient because the bank employees who

testified against him were so unreliable that no rational trier of fact could have believed what

they said. He argues that, in general, eyewitness identification testimony is unreliable. He also

points out that the testimony was not corroborated by physical evidence. Munnerlyn notes that

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United States v. Munnerlyn

after the June 11, 2004, robbery, when bank employees Vicki Jahn and Kristy Searles were

shown photo spreads that did not include Munnerlyn, they picked out a then current suspect,

Leonard Wilson, as the man who robbed their bank. Munnerlyn characterizes the identifications

made by the bank employees as questionable because the robber had covered the bottom of his

face and wore a hat.

       At trial, the government presented the testimony of several bank employees who

identified Munnerlyn as the man who robbed their bank on April 1, 2004, and June 11, 2004.

Bank employee Patricia Greisenauer stated that Munnerlyn entered the bank with a firearm,

threatened employees and customers, fired the firearm, and forced employees to give him money.

When bank employee Peggy Sammons testified about the April and June robberies, she identified

Munnerlyn as the man who was two to three feet in front of her when he pointed a gun at her and

forced her to place money in his bag. Bank employee Kristy Searles testified that during the

April and June robberies she was in the front of the bank and observed Munnerlyn rob the bank.

She said that she saw the robber walk into the bank, pull up a mask, and then pull out his gun.

Looking at a photograph from the April 1, 2004, robbery, Searles identified Munnerlyn as the

robber in the photograph. Searles stated that during the June robbery, Munnerlyn’s mask slid

down and she saw part of his face. Bank employee John Barnes, who was present for all three

robberies but admitted that he never got a good look at the robber, testified that he believed that

the same man robbed the bank on all three occasions based on the robber’s voice, the language

used during the first two robberies, and the way the robberies were carried out.

       Munnerlyn’s arguments challenge the credibility of the witnesses, not, as he claims, the

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United States v. Munnerlyn

sufficiency of the evidence. “[D]etermining the credibility of witnesses is a task for the jury, not

this court.” United States v. Kelly, 204 F.3d 652, 656 (6th Cir. 2000) (citing United States v.

Hilliard, 11 F.3d 618, 620 (6th Cir. 1993)); see United States v. Adamo, 742 F.2d 927, 934-35

(6th Cir. 1984) (“There is no place, however, for arguments regarding a government witness’

lack of credibility in a Rule 29 motion for acquittal before a federal trial judge. A trial judge

considering a Rule 29 motion may neither weigh conflicting evidence nor consider the credibility

of witnesses.”). The jury was obviously entitled to accept the testimony of the bank employees

despite Munnerlyn’s efforts on cross-examination to discredit their testimony by questioning

them about erroneously identifying another suspect as the robber and their ability to accurately

identify the disguised robber. Munnerlyn has not shown that the government failed to prove

beyond a reasonable doubt that he committed the elements of the crimes for which he was

charged, that is, that he took, by force and violence and by intimidation, money from the

Heartland Bank on April 1, 2004, and June 11, 2004, and in doing so, put in jeopardy the life of

any person by the use of a dangerous weapon or device, 18 U.S.C. § 2113(a), (d), and that he

knowingly used or carried a firearm during and relation to those robberies. 18 U.S.C. §

924(c)(1)(A)(ii), (iii). The evidence of Munnerlyn’s guilt was sufficient to support a conviction;

therefore, the district court did not err in denying his motion for acquittal with respect to Counts

1, 2, 3, and 4.

        As to Count 6, Munnerlyn argues that the evidence presented to convict him of

knowingly using or carrying a firearm during and relation to the September 8, 2004, robbery was

insufficient because the government never presented any evidence that the firearm used in the

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No. 05-4101
United States v. Munnerlyn

robbery was real. However, the bank employees testified that the September 8, 2004, robbery

was slightly different than the two previous robberies. Unlike the April and June robberies,

during the September robbery, the robber did not shoot the gun he was carrying and was not as

loud or as profane. Instead, according to the bank employees who testified, the robber entered

the bank with a gun and announced, “you know the routine.”

       Although the government did not present the gun used in the robbery, it submitted bank

surveillance pictures from the September robbery in which the robber was holding what appears

to be a gun while forcing bank employees to place money in a bag. The government also

presented the testimony of bank employees who claimed that the same man robbed the bank on

all three occasions. A bank customer who witnessed the September robbery testified that the

robber had a gun. Munnerlyn’s argument that the government never proved that he used a gun in

the September robbery fails, and the evidence and eyewitness testimony offered by the

government to convict Munnerlyn was sufficient to support a jury verdict finding that he used or

carried a firearm in violation of § 924(c). Therefore, the district court did not err in denying his

Rule 29 motion with respect to the charge in Count 6.

                                                 II.

       Munnerlyn claims that it was unfairly prejudicial for the district court to allow the

government to play a tape recording of his September 11, 2004, phone call from jail. The

government presented a taped telephone conversation in which Munnerlyn makes a three-way

telephone call from jail and asks the other person if anyone came and got “that.” When the other

person says he disposed of “it,” Munnerlyn asks if he hid “it” good and tells him that he wished

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No. 05-4101
United States v. Munnerlyn

he had burned “it.” Munnerlyn objected to the evidence, anticipating that the government would

ask the jury to draw an inference that he was asking the other person to destroy evidence related

to a bank robbery. According to Munnerlyn, the government should have been required to

demonstrate that “it” was related to the September 8, 2004, bank robbery. After emphasizing

that the jury was free to decide whether an inference should be made based on the conversation,

the district court overruled Munnerlyn’s objection to the introduction of the tape recording and

found that the tape recording was probative and went to one of the main issues in the case.1

        Evidentiary rulings that are properly preserved are reviewed by this Court under an abuse

of discretion standard. United States v. Mack, 258 F.3d 548, 553 n.1 (6th Cir. 2001). An abuse

of discretion is found if the ruling is “manifestly erroneous.” Gen. Elec. Co. v. Joiner, 522 U.S.

136, 142 (1997). When reviewing a district court’s Federal Rule of Evidence 403 determination,

this Court “takes a maximal view of the probative effect of the evidence and a minimal view of

its unfairly prejudicial effect, and will hold that the district court erred only if the latter

[substantially] outweighs the former.” United States v. Sassanelli, 118 F.3d 495, 498 (6th Cir.

1997) (citing United States v. Sanders, 95 F.3d 449, 453 (6th Cir. 1996)).

        Munnerlyn relies on Nation-Wide Check Corp. v. Forest Hills Distributors, Inc., 692 F.2d

214 (1st Cir. 1982) to support his argument. The Nation-Wide case, however, is inapposite to

that of the case sub judice. In Nation-Wide, the trial court held that one defendant’s act of


        1
         Although the district court did not explicitly state that it was balancing the probative value
of the tape recording against its prejudicial effect, it is clear from the trial transcript that the court
acknowledged Munnerlyn’s argument that the tapes were unfairly prejudicial and nonetheless
overruled his motion.

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No. 05-4101
United States v. Munnerlyn

destroying certain banking records supported an inference that the records would have allowed

the plaintiff to trace its funds into the hands of the defendants. Id. at 217. The Nation-Wide

defendant was on notice of the plaintiff’s possible claim to the funds before he destroyed the

records. Id. at 219. In Munnerlyn’s case, the trial court allowed the jury to hear evidence that

three days after the September 8, 2004, robbery and after Munnerlyn was arrested, he called

someone from jail and asked the other person to hide or destroy something.

       Nation-Wide does not advance Munnerlyn’s argument because the conclusions drawn by

that court do not support the proposition that the government must offer proof of what

Munnerlyn was discussing on the phone call before the jury is permitted to draw an adverse

inference from his statement. The Nation-Wide court noted the general principle that some

evidence of a destroyed document’s contents must be offered to permit an inference to be drawn

about the contents. Id. at 217. But in Munnerlyn’s case, the jury was not being asked to draw an

inference about what he wanted hidden or destroyed. The fact that Munnerlyn stated in a phone

conversation three days after the September 8, 2004, robbery that he wished the other party had

hidden or burned something proves that Munnerlyn wished the other party had hidden or burned

something, and it was permissible to allow the jury to infer that the statement was related to the

recent robbery.

       Taking a maximal view of the probative value of Munnerlyn’s phone conversation and a

minimal view of its unfair prejudicial effect, it was not an abuse of discretion to allow the

September 11, 2004, recording. The tape recording includes probative evidence suggesting

Munnerlyn’s consciousness of guilt. See United States v. Mendez-Ortiz, 810 F.2d 76, 79 (6th

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No. 05-4101
United States v. Munnerlyn

Cir. 1986). It was not unfairly prejudicial to allow the jury to infer that Munnerlyn’s statement

was related to the robbery even though there was no direct evidence presented as to what he was

discussing. Unlike United States v. Copeland, 321 F.3d 582 (6th Cir. 2003), another case cited

by Munnerlyn, in which statements by the defendants that they wanted to harm the government

attorney who was prosecuting their case would “cast an extremely negative light upon their

characters” and cause the jury to make “impermissible inferences,” in Munnerlyn’s case, the jury

could draw the permissible inference that his statement that he wanted to hide or destroy

something was related to the robbery. Id. at 598. In contrast to the Copeland defendants, and as

noted by the district court, Munnerlyn could provide a reasonable explanation for the

conversation. The unfair prejudice that threatened the Copeland defendants was not present in

Munnerlyn’s case.

        Although the lack of evidence as to what Munnerlyn wanted hidden or destroyed arguably

reduces the probative value of his statement, what weight to give the statement was for the jury to

decide, and Munnerlyn has not shown that its admission into evidence was unfairly prejudicial.

Allowing the jury to hear the September 11, 2004, phone conversation was not an abuse of

discretion by the district court.

                                                III.

        Finally, Munnerlyn argues that the district court erred in admitting four taped phone

conversations, including the September 11, 2004, conversation, because the government failed to




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No. 05-4101
United States v. Munnerlyn

establish a foundation for the recordings.2 Munnerlyn never raised an objection to the admission

of the tapes based on this reasoning.

        If no objection to the introduction of the evidence is made in the trial court, this Court

conducts a review for plain error. Fed. R. Crim. P. 52(b); United States v. McBride, 362 F.3d

360, 373 (6th Cir. 2004). “Under plain-error review, the appellant must show (1) that there was

an error, (2) that is clear and obvious, and (3) that affects substantial legal rights.” United States

v. Angel, 355 F.3d 462, 469 (6th Cir. 2004). If the first three factors exist, the Court considers

whether to exercise its discretionary power under Rule 52(b) and decides whether the plain error

affecting substantial rights also “seriously affects the fairness, integrity, or public reputation of

judicial proceedings.” Johnson v. United States, 520 U.S. 461, 467 (1997) (citations omitted).

“Plain error is defined as an egregious error, one that directly leads to a miscarriage of justice.”

United States v. Busacca, 863 F.2d 433, 435 (6th Cir. 1988).

        Under Federal Rule of Evidence 901(a), a party authenticates a document by presenting

evidence sufficient to support a finding that the document is what the party claims it to be. The

government did not present a witness to testify as to the tapes’ authenticity. Munnerlyn, as noted,

never objected during the trial to the government’s failure to authenticate the tapes, and he

presents no argument on appeal that the district court’s admission of the tapes affected his

substantial legal rights. Even if the government failed to lay a proper foundation, Munnerlyn has

not shown that admitting the taped telephone conversations was prejudicial and affected the


        2
         In the second taped conversation, Munnerlyn discusses shaving before going to trial.
During the third and fourth conversations, he discusses alibi witnesses.

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No. 05-4101
United States v. Munnerlyn

outcome of his trial. In light of the testimony from several bank employees who identified him

as the man who robbed their bank in April, June, and September of 2004, admitting the tapes of

Munnerlyn’s phone conversations did not constitute plain error.

                                              IV.

       For the reasons stated above, we AFFIRM the decision of the district court.




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