                                                                              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                           NOT FOR PUBLICATION                                SEP 12 2014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.




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